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

R. v. Jackey [1834] NSWSupC 94

murder - manslaughter - Aboriginal defendant - Aboriginal land rights - Aboriginal law, recognition of  - Williams River - self-defence - Aboriginal evidence - Cape colony, Aboriginal issues - apartheid

Source: Australian, 6 May 1834[1 ]

An aboriginal native named Jacky Jacky, who stands committed to take his trial for the murder of a white man at Mr. Mossman's farm on Williams's River, arrived by the steamer William the Fourth, on Thursday.  The unfortunate black was entirely naked, and the irons on his legs had lacerated them in a dreadful manner.  He appeared to feel the situation, and cried most bitterly on leaving Newcastle.  A stockman at Mr. Parke's station, on William's River, has been speared by an aboriginal.

 

Forbes C.J., 8 August 1834

Source: Sydney Gazette, 12 August 1834

 

(Before the Chief Justice, and a Jury of Civil

 

Inhabitants.)

Jackey, alias Wong-ko-bi-kan, an aboriginal native, was indicted for the wilful murder of John Flynn, by wounding him with a spear at William's River on the 3rd April last, of which wound he lingered until the 6th following, and then died.

The Reverend L. E. Threlkeld was sworn interpreter between the Court and the prisoner at the bar.  The Reverend gentleman was assisted by another aborigine, who could understand English, but who being of no religion at all, could not be sworn as an interpreter.  On being asked by what jury he would be tried, the prisoner replied by ``black-fellows;" but this of course the Court was not empowered to grant.  A military officer (Lieutenant McAlister), in uniform, was then shown to him, but the prisoner said ``no soldier," upon which a jury of Civil Inhabitants was empannelled [sic].  The Solicitor-General stated the case for the prosecution; Mr. G. R. Nichols defended the prisoner.

Thomas Rodwell being sworn, said - I am a free man residing at Mr. Mackenzie's establishment at William's River, Mr. M. is resident magistrate there; on a Thursday morning in April, about two o'clock, I was awoke by two of Mr. Archbald Mossman's men, who informed me on the previous night they had been attacked by a party of blacks and that they expected before they returned to the station, the remainder of the men there would be murdered by them; the distance between the two stations, is about seven miles; I acquainted Mr. M. of the circumstance, and he gave me some arms and ammunition, and told me if I could find any men on his or Mr. Mossman's stations, to take them with me, and apprehend two or three of the depredators; I mustered seven stand of arms and ammunition; I and the two men, who came with the information there, went to Mr. Mossman's, where we obtained six other men, making in the whole party nine persons, all of whom were armed save two, and we then went to the blacks' camp, which was about two miles from Mr. Mossman's station, near a small creek; when we arrived there, we saw about 20 black men; we divided ourselves into two parties; a black boy, called ``Lumpy," who we took with us, pointed out the blacks to us; we had seven stand of arms, which we did not conceal from the blacks; the deceased John Flynn, was not in the same party with me, but both parties were to meet before we went up to the blacks, with whom we intended to speak peaceably; the first thing that I saw when our party came up with the black camp, was the deceased speared; he was armed with a fowling piece; he stood a little in front of his party, and I saw the spear thrown at him from the left, which struck him under the shoulder blade; there was only one black man on his left side; the deceased plucked out the spear, and followed the black who had speared him; he was assisted by two others of the party in the case, and they captured him about a quarter of a mile off; neither of those two men are here; I did not see the black man taken; I had seen the prisoner before on Mr. Mackenzie's farm, but I was not near enough to distinguish him before he was captured; there was no other black man in the direction where the prisoner was taken; I followed afterwards, and went up to where he was taken; the prisoner used to fetch me wood and water; although I did not recognise the prisoner when he threw the spear, yet I saw Flynn and the other two men pursue the black man who threw the spear (the only one in that direction), and I afterwards saw him in their custody; he was the prisoner at the bar.

(It was here intimated to the Court, that the prisoner wished to retire for a short time, and he was therefore directed to be removed in charge of a constable.  On his return into the dock, the reverend interpreter stated, that the constable in charge of the prisoner had just been using him with unnecessary roughness; upon which the constable (John Proctor) was interrogated from the bench, and he stated that the prisoner made an effort to free himself entirely from his clothes from which he was apprehensive it was his intention to escape, and he therefore seized him by the back of his neck; upon which the learned Judge observed, that the constable having apparently acted under a misapprehension, he would not pursue the enquiry any farther.)

The trial was then resumed.

Examination of Rodwell continued - I am certain the prisoner is the man who threw the spear at the deceased; it was not more than a minute after we came up to their camp, that the blacks threw their spears, and boomarings [sic] at us; they attacked us without any provocation on our part; after they threw their spears, four or five shots were fired from our party; I fired, and the deceased fired also I think at the man who wounded him; the blacks still continued to throw their spears at us after they had wounded the deceased; I considered myself called upon to fire in self-defence; I did not see the prisoner throw more than one spear; the blacks did not all retreat at once; after the black man had thrown the spear at the deceased he ran away, making his way up a small mountain, where he was taken; the prisoner had had an opportunity of seeing the use of fire arms on the establishment before this; Flynn pulled out the spear first, then discharged his fowling piece, and followed the prisoner; the deceased called out to me that he had been speared, and pointed to the black who had speared him; I afterwards took off Flynn's shirt, and examined the wound in presence of the prisoner; the wound bled very little; I did not think it a dangerous one; the deceased did not complain of much pain; he walked the first day after he had received the wound, I should think 13 or 14 miles; on the next day he walked to the Court-house at William's River, which was about eight miles distance; on the following morning he left the Court-house to go to the General Hospital at Newcastle, but on the way I heard that he was taken ill, and conveyed by one of the drays of the Australian Agricultural Company to Paterson's River, where he died on the same day; if the spear had had force enough, from the direction which it took, it must have gone through the deceased's body.

Cross-examined by Mr. Nichols - Mr. Mackenzie gave us powder, and small and buck shot, and the arms were loaded with this ammunition; our object was to get two or three of the ringleaders to bring them down to the police bench; I was about 20 yards from the black, and Flynn 15 yards from him, when he was speared; there were none of the guns presented at the blacks before Flynn was speared; none of the party had an opportunity of speaking to the blacks before any of the spears were thrown; it was about half an hour after sun-rise that we came up with the blacks; it was quite light; my instructions from Mr. Mackenzie, which were verbal, were to capture the blacks, and not to fire upon them unless in our own personal defence, and these instructions I communicated to the rest of the party; we captured the prisoner and four women, and five children; I do not know whether the prisoner was one of the party who attacked Mr. Mossman's hut on the previous night; I did not examine the spear to see if there was any blood on it; the deceased ran upwards of 50 yards in pursuit of the prisoner; I cannot give any idea of the depth of the wound, but it appeared to be in a slanting direction; if the prisoner had not been captured, I should not have been able to identify him; Flynn was the assigned servant of Mr. Archibald Mossman, and I have heard him say he knew the prisoner, but I do not know it of my own knowledge; I considered myself the leader of our party.

By the Solicitor-General - I am sworn constable, and was so at the time the affray took place; I knew from the information I had previously received, that it was the tribe to which the prisoner belonged that had attacked Mr. Mossman's men on the previous night.

By Mr. Nichols - I had no warrant to apprehend any of the blacks; I know that some of the stockmen in the interior cohabit with the black gins (women) but I do not know whether Mr. Mossman's stockmen did; I have visited their station frequently as a constable, but have never seen them with any of the women.

By a Juror - The deceased repeatedly told me after he had been speared, that he was certain it was the prisoner who had speared him.

Jonathan Webster being sworn, said I am a free man, and was working for Mr. Mossman, on the 3d April last; constable Rodwell called upon me about 2 o'clock on that morning to accompany him in pursuit of a party of blacks, who on the previous night had attacked the men at Mr. Mossman's sheep station; I and several others went with the constable; we all had fire arms except one or two; we took with us a black boy called ``Lumpy," who brought us upon the blacks shortly after sun-rise; I saw a spear let fly, and afterwards saw it in the body of the deceased, who told me he was speared, but he thought not deeply; shortly afterwards I heard a shot fired; a boomaring [sic] nearly struck me; I fired also, but cannot say whether I hit any one; I saw the prisoner taken by Flynn and two other of Mr. Mossman's men as he was ascending a hill, and Flynn told me that he was certain the prisoner was the man who had wounded him, as he had never lost sight of him from the time he was wounded until he was taken, and there was no other black man on that side of him; I am positive the spear was thrown before any shot was fired, and the blacks seemed prepared for an attack.

Cross-examined by Mr. Nichols - The blacks saw our fire arms, and they sent their women and children into the brush as we came up to them, which is their usual custom when they are bent on mischief; Flynn was about fifteen yards off from the black man when he was wounded; I saw the black man's arm upraised to throw the spear, but I did not see deceased at that time, and it was about a minute afterwards that the shot was fired; I saw two blacks with their spears raised, and I am positive the prisoner was one of them; I think it was possible for Flynn to have mistaken the prisoner for the man who wounded him, as I saw three of the blacks running in that direction; ``Lumpy" did not belong to the prisoner's tribe; the prisoner denied that it was he who threw the spear; he said it was thrown by others; I have known the prisoner for some time in that district; he was considered a quiet and domesticated man, and one who I should have thought was not likely to spear a white man; there were three or four blacks standing in the direction where Flynn was wounded, and I cannot say which of them it was that threw the spear.

John Chisholm being sworn, said I am free, and I went to the blacks' camp in April last with constable Rodwell and several others; (this witness, not appearing to know anything material of the circumstance, was withdrawn.)

Mr. Isaac Scott Nind being sworn, said I am a surgeon, and in April last I examined the body of a man named John Flynn, at Mr. Jones's public-house, the sign of the ``Settler's Arms" at Paterson's River; I was called on to attend him; he was alive when I first saw him, but was in a dying state; I did not know him personally, but I afterwards was told his name was John Flynn; he had a small punctured wound under his left shoulder; it was deep; I traced it and found it had passed between the ribs into the chest, slightly wounding the lungs; it was not a wound necessarily fatal, but in this instance I have no doubt it was the immediate cause of his death.

Cross-examined by Mr. Nichols - I cannot say whether the inflammation which existed in the lacerated parts, was occasioned from the wound itself, or from excessive travelling after it; I think it might be produced from either.

By the Court - I am decidedly of opinion the wound was the cause of his death; and the cure of such a wound would entirely depend upon the nature of a patient's constitution, as well as the mode of treatment pursued.

Mr. Evan William Evans being sworn, said I am a settler, residing at William's River; I knew John Flynn; he was a servant of Mr. Mossman's; I saw him in April last, at Mr. Jones's public-house, at Paterson's River; he was wounded under the shoulder; he died of that wound; I saw him after he was dead.

George Mackenzie, Esq., being sworn, said I am a Magistrate of the Territory, John Flynn, an assigned servant of Mr. Mossman's, came before me in April last, and made a deposition, which I now hold in my hand, in the presence of the prisoner at the bar; I saw him make his mark to it, and it is attested in the usual manner; he was wounded in the shoulder; two native blacks were there to explain to the prisoner the nature of the accusation against him, which is all the means of interpretation I had within my power.

Cross-examined by Mr. Nichols - I do not think the prisoner had anything like the same means of understanding the nature of the proceedings against him, which a white man in his situation would have had; I issued no warrant to the constable to apprehend the blacks, nor had I received any information on oath of the outrage they had committed.

Mr. Nichols objected to having the deposition read against the prisoner, he not having had the benefit of cross-examination upon it.

The Chief Justice thought that all had been done which the act required, and that there was consequently no legal objection to having the deposition read in evidence, but he would recommend that such part only of it be read as related to the identity of the prisoner.

(The deposition was then put in evidence, and a portion of it was read by the officer of the Court, from which it appeared that the deceased John Flynn, swore positively to the identify of the prisoner at the bar, as being the man who had speared him.)

This was the case for the prosecution.

Mr. Nichols rose to make an application to the Court, certainly a novel one in its nature, but one which he thought from the peculiarty [sic] of the case, would meet the sanction of the bench.  It was manifestly a mere mockery to call upon the prisoner to make his defence before persons by whom he could not be understood, and he therefore hoped His Honor would grant him (Mr. N.) permission to address the Court and Jury upon the facts of the case.  He made this application with the greater confidence, seeing that the Court had formerly ruled as proper, a departure from one of the first principles of the British law, on the plea of ex necessitate; and he therefore trusted that the Court would now grant an indulgence, (which some of the most learned of the profession in the mother country, had lately discused [sic] as a right) where the apparent necessity was so much greater.  He alluded to the case of the robbery of the Bank of Australia, where contrary to the spirit of the law, the evidence of a convict attaint, laboring under a capital conviction, had been received against free men.

The Chief Justice said in the absence of any precedent, he must refuse the application; in granting he it, should incur a responsibility for the exercise of which he was not warranted.  He did not think the case for the prisoner would suffer anything from his inability to address the Jury in his defence.

Mr. Nichols then submitted that the prisoner was entitled to his acquittal in point of law.  The aboriginal natives were the primary tenants of this soil; they subsisted in the woods by fishing and hunting, and it was illegal for any one to disturb them in the possession of these natural rights.  The attack of the party from the station of Messrs. Mackenzie and Mossman upon the tribe of black natives, to which the prisoner belonged was not covered by a legal proceeding of warrant or other instrument, and it could therefore only be considered as the attack of one armed party against another in open warfare, whose acts it was well known were not indictable by their civil law.

The Chief Justice was of opinion that there was a sufficient case made out to put to the jury, and that there was nothing in the objections just made, to arrest the proceedings in their present stage.

In answer to an enquiry from the Solicitor General, Mr. Nichols said, he could not produce witnesses for the defence, because he was unable to converse with the prisoner as to the merits of the case; and if he could produce any, their evidence would not be received.  The Solicitor-General denied that this was a necessary cenclusion [sic], upon which Mr. Nichols put into the witness box the aboriginal native, who was asssisting [sic] Mr. Threlkeld as interpreter.  A conversation then took place respecting the capability of the natives imbibing any religious impressions, or of their believing in any future state of rewards and punishments.  Mr. Threlkeld stated, that the black man in the witness box believed in the existence of a divinity and a future state, because he had told him so, and not from any belief of his own on the subject.  The court enquired whether the man tendered as a witness could speak to any of the facts?  Mr. N. replied in the negative - his object was to prove by illustration the impossibility of tendering witnesses for the defence.  The discussion then ceased.

The Chief Justice then addressed the jury, to whom he remarked, that before he should say anything on the facts of the case, he purposed making a few general remarks applicable to it.  His Honor said, that cases had already occurred before him in the Supreme Court, where the aboriginal natives of the colony had satisfied with the loss of their lives, the infraction of our laws.  He should put the case of the prisoner at the bar to them in the same manner so against any of his Majesty's subjects, because he knew of nothing to prevent these people being considered as such.  It was necessary to treat them in this manner on many grounds, but on this principally.  The enjoyment and protection of life is as much the law of nature as the law of England.  If in a newly inhabited country, there be no municipal law, then the law of nature comes into operation; for if it were not so, the law of retaliation or self-defence would be acted upon.  It was then as much for he benefit of the black as the white portion of the community, that the protection of the law should be equally afforded them; it was a reciprocal protection, founded on the dictates of policy, justice and humanity.  The learned Judge next proceeded to explain the various degrees which the law attaches to the crime of homicide, in their several relations of wilful murder, manslaughter, and excusable homicide.  After an elaborate view of this subject, coupled with the summing up of the evidence in the case, His Honor remarked, that in the present instance it was not perhaps too much for him to say, that the offence of which the prisoner stood charged was not one of murder, because there was that shew of hostility in the armed party going in pursuit of the tribe of natives, which would give it the appearance of provocation; neither was it a case of excusable homicide, because there was no disposition on the part of the natives to avoid the encounter, or to fly away from an attack, but, as it would appear from the evidence, rather a preparation for it.  He should therefore leave the case with the jury as one of manslaughter only, of which they were to form their judgment of the guilt or innocence of the prisoner, from the evidence adduced.

The jury after having retired for considerably upwards of an hour, returned with a verdict of Guilty of Manslaughter, but reccommeded [sic] the prisoner to mercy, from the peculiar circumstances under which the offence was committed.

The Chief Justice. - A very proper verdict gentlemen: your recommendation shall be forwarded to the proper quarter.

The prisoner being ordered to stand remanded, Mr. Nichols rose to state a circumstance regarding the unfortunate man which had come under his personal observation.  He was a passenger in the steamer by which the prisoner had been forwarded from Newcastle, and the latter was then not only in a complete state of nudity, but the irons with which he was fettered had, from neglect, cut his ancles [sic] to the bone, and rendered his situation both painful and distressing.  Mr. N. hoped that the Court would give some order as to his comfort during the time the prisoner might remain in custody.  The Chief Justice recommended the prisoner to the Sheriff's humane attention.

 

Source: Australian, 12 August 1834[ 2]

 

Friday. - Before His Honor the Chief Justice, and a Jury of Inhabitants.

Jacky, an aboriginal native, was indicted for the wilful murder of John Flinn, at Williams's River, on the 3d April last, by inflicting on him a wound on the shoulder, with an instrument called a spear, which would was the cause of his death.

The Reverend Mr. Threlkeld, and an Aboriginal native, attended to act as interpreteters [sic].

The prisoner, on being asked whether he would be tried by a Civil or Military Jury, answered, he preferred a Jury of Black Fellows.  Be objected to the trial by the soldiers, and a Jury of Civil Inhabitants was impannelled [sic].

Thomas Rodwell - I reside at Mr. McKenzie's, J. P. at Williams's River; on Thursday, about 3 o'clock, the 3d April, I was awoke by two of Mr. Archibald Mossman's men; they informed me that on the previous night they had been attacked by a party of blacks, and their hut robbed, and that they expected before we could return to the station, that the men left there would be murdered; it is about 7 miles from Mr. McKenzie's; I told Mr. McKenzie; he gave me arms and ammunition; he told me if I could find any men either on his station or Mr. Mossman's, to take them with me, for the purpose of bringing in some of the blacks; I got John Chisholm and John Webster to go along with me; went in company along with two of Mr. Moisman's men; when we got to Mossman's, six of his men joined us; we then proceeded to the camp of the blacks, about two miles from the station; it was near a creek; there were about 20 male Aboriginal natives there; I took 4 women and 5 children to Mr. McKenzie's; we divided ourselves into two parties, directed by an Aboriginal boy called Lumpy; John Flinn and two men of Mr. Mossman's went round by a bush; we were all armed; we had seven stand of arms altogether; they were not concealed; we were about 40 yards from the blacks when I saw them first; I had orders not to fire upon them unless they molested us first; one party went round the bush, and the other through it; we intended to go up and speak to them first; the first thing I saw when we came in view of the camp, was Flinn speared; he was in front of the others at the time; he was armed with a fowling piece; the spear went through his left shoulder; I saw the spear thrown; I knew the black who threw the spear; Flinn took the spear out himself, and followed the man who threw it; I saw them chase the prisoner; I did not see the prisoner taken; there was not another black in the same direction where prisoner was taken; I was not close enough to know prisoner when he threw the spear, but I have not the least doubt the prisoner is the man; when I came up to him, he was in charge of Flinn and Mossman's two men; I am sure the prisoner is the man who threw the spear; when we came up to the camp they all threw their spears and boomerings [sic] at us; it was not a minute after we came up, that they did so; this was done without any provocation whatever; when they threw their spears, we fired at them; Flinn fired after he was speared; when we fired, the blacks were throwing their spears; there were several thrown at us after Flinn was wounded; when we fired, our object was to hit them; my piece was loaded with small shot and buck shot; some of the blacks were wounded, the prisoner was not wounded; when Jacky threw the spear at Flinn, he ran away from his party, and made up a small mountain; it was Jacky that Flinn fired at; the party did not all discharge their fire arms; Flinn said to me he had received a spear in his left shoulder; pointing to prisoner, he said, that is the man that speared me, and then fired; Flinn could walk very well; I saw the wound; I took off Flinn's shirt, and it did not bleed much; Flinn walked home to Mr. McKenzie's, and then to Mr. Rookins'; it was about 13 or 14 miles; the following morning he walked with me to Williams's River to the Court House, which was about 8 miles; next morning he went to the General Hospital; he was taken ill on the road, and conveyed on a cart to a cottage at Paterson's River, where he died; I saw him the day before he died; it was on the 5th April; the wound was a small one under the left shoulder blade; none of the other weapons thrown by the blacks took effect.

Cross-examined by Mr. Nichols - Mr. McKenzie gave me arms and ammunition; our pieces were loaded before we came up to the blacks; we divided into two parties; Flinn was in front of me when he was wounded; the prisoner was on Flinn's left hand; we wanted to get one or two of the ringleaders to take them to the Bench; Flinn was about 20 yards from me when he was wounded, and about 15 yards from the prisoner; there was not a piece presented by any of our party until after Flinn was speared; when we advanced we had our pieces over our shoulders; none of our party spoke to the blacks; it was half an hour after sunrise when we came to the camp; the blacks were all alarmed when we came up; it was 7 or 8 miles from Mr. McKenzie's to the camp of the blacks; our intention was to capture one of two of them; we went solely with this intention, and went armed; the blacks know the use of fire arms very well; on arriving at the damp, I desired my party not to fire on any account, unless in their own defence; I do not know whether the prisoner is one of the party who robbed the hut; I did not examine the spear after Flinn drew it out; if the man who threw the spear had got away, I should not have been able to identify him; I have heard Flinn say that the man who threw the spear knew him.

By the Solicitor General - I am a constable; I know the prisoner to be one of the tribe complained against for robbing the hut.

By Mr. Nichols - I cannot swear that the prisoner was at the hut; I had no warrant to apprehend them.

By one of the Jury.  After the black was captured and brought in the presence of Flinn, the deceased said repeatedly that he was the person who speared him.

Jonathan Webster - I was along with Mr. Mossman in April last; Rodwell called upon me then to look for some blacks who had robbed Mr. Mossman's hut; a man of the name of Chisholm went with us, and two of Mr. Mossman's government men; we got to the camp at day break; we took an Aboriginal named Lumpy along with us; he belongs to a different tribe to the prisoner; when we came to the camp they were gone; the boy showed us their track, and we found them; I was of Rodwell's party; when we came up I saw the spear fly, and immediately after Flinn said he was wounded; I saw him pull the spear out of his body; there was no spears thrown at our party; the blacks ran away; I called on them in their own language to stop; they ran faster; I then fired; I do not know if any of them were wounded; Jacky was then pursued by Flinn and another, and overtaken by myself; I brought him to Rodwell; Flinn said he was the man who throwed [sic] the spear; Flinn said he never lost sight of the prisoner from the time he threw the spear until he was taken; when we came up to the blacks they seemed quite prepared for us; there was no mention made as though we seemed to attack them, until such time as Flinn was wounded.

Cross-examined by Mr. Nichols. - I cannot say what made the woman and children go away.  The natives generally send them away when they are bent on mischief.  It might have been our appearance with fire arms, that induced the blacks to throw their spears.  I cannot say whether the prisoner was the man who threw the spear, there were two or three blacks around the prisoner at the time, and ten or a dozen at a little distance.  Flinn might have made a mistake in the black.  I cannot say whether any of the blacks belonging to the prisoner's tribe robbed mr. Mossman's hut.  I always thought the prisoner a quiet man, he was much about our huts, tand [sic] always conducted himself well.  I should not think him likely to commit such a crime as that for which he is now at the bar.  Flinn did not complain much of the wound till next day.

Isaac Scott Nimil. - I am a surgeon, I saw the body of John Flinn at Mr. James's, the settlers arms, Paterson's River.  I saw him when alive.  I was called to attend him a few hours previous to his death.  He was wounded under the left shoulder.  It was a small punctured wound and deep, he was in a dying state when I saw him, he died that evening, he died of inflamation [sic], the lungs had been wounded slightly; I opened the body, the wound was beneath the skin about 3 inches, and entered the chest between 6th and 7th rib; such a wound might not be a necessary cause of death, but in this instance, it was; the lungs were lacerated externally, but not deeply penetrated; I have no doubt it wad the cause of his death; he stated to the bye-standers that he expected to die.

Cross-examined by Mr. Nichols. - The travelling 14 or 15 miles might have occasioned the inflammation, and it might have arisen without that exertion.

By the Court. - I have no doubt he died of the wound; in many cases, such a wound might not be fatal, but in this it was, it depended upon the constitution of the patient.

George Mackenzie, Esq. J. P. - I know Flinn, I saw him with a wound under his left shoulder.  He came before me on the 3d April, with a constable and a black native; the prisoner at the bar is the person, he was charged with having inflicted a wound on John Flinn with a spear, the prisoner was present, Flinns evidence was taken down truly.  This is the deposition taken on the occasion, which I now hold in my hand, this is his signature, also mine, I endeavoured to impress upon the prisoner, the nature of the offence with which he was charged by getting two aboriginal natives to explain it to him.

Cross-examined by Mr. Nichols. - The deceased did not express any fears of dying at the time the examination was taken before me.  When I sent the men to capture the blacks, I did not issue any warrant.  I did so without any information on oath, I ordered them to arm themselves.  It is likely the blacks would throw spears if they saw their opponents coming against them with fire-arms.

Evan William Evans. - I am a settler at Hunter's River.  I know the deceased, he was a government servant of Mr. Mossmans.  I saw him before he was dead.  I saw him after.  He was insensible when I saw him first.

Cross-examined. - There may be more than one John Flinn; part of the deposition of the deceased taken before George Mackenzie, Esq. was then read by the registrar - which stated ``that the deceased, accompanied by others, went to the camp of the blacks, on coming there, he went before the rest, for the purpose of speaking to the blacks, when, without any provocation, a spear was thrown at him and wounded him in the shoulder, he was positive it was thrown by Jacky the prisoner."

Mr, Nichols - From the singular situation in which he was placed, by not being enabled to call any of the brethren of the prisoner as witnesses, in consequence of their not understanding the nature of an oath, trusted, that His Honor, would, on the present occasion so far travel out of the usual course, and permit him to address the jury for the prisoner.

His Honor could find no precedent to warrant him in granting Mr. Nichols' application, and not being prepared to break through a rule of law, and take a degree of responsibility upon himself which he was by no means inclined to do, he was under the necessity of refusing the application.  He did not think the prisoners case would suffer by being left in the hands of the Court.  His Honor summed up.

The Jury retired for nearly two hours, and returned a verdict of guilty of manslaughter, with a recommendation to his honor on behalf of the prisoner, which his honor said would be atttended [sic] to.

The Aboriginal name of the prisoner, is Wong ko-bi-Han.

 

Forbes C.J. and Dowling J., 27 August 1834

Source: Sydney Herald, 1 September 1834[3 ]

 

(Before His Honor the Chief Justice, and Mr. Justice Dowling.)

The following prisoners convicted during the Sittings and remanded, were brought up for Sentence.

``Jackey," an aboriginal black, for the murder of John Flynn at Williams River, was sentenced to be transported from the Colony for the term of his natural life.  The prisoner appeared quite ignorant of what was going on in the Court.

 

Notes

[1 ] See also, Australian, 16 May 1834; and see Australian, 29 July 1834.

On 19 August 1834, the Australian reported a formal fight, with seconds, between two Aborigines at the cattle market.  The newspaper admired the skill and fairness of the fighters.   See also Australian, 8 July 1831 saying that an Aborigine accused of murder at Hunter River, had arrived in Sydney for trial.  Nothing came of it, apparently.

The Australian was sometimes sympathetic to native issues.  In its issue of 16 December 1834, the newspaper criticised the Legislative Council of the Cape colony for attacking the freedom of aboriginal peoples there, and stated that there was ``no probability" that the ancient settlers would establish their boorish sway or that the King would allow the virtual repeal of the enactment of liberty to the Aboriginal natives.

[2 ] In important cases such as this, both newspaper accounts are included.  The Sydney Gazette gives a much better account of the legal arguments, but there are some details in the Australian's version that do not appear in that of the Gazette.  The Sydney Herald did not report this case.

[3 ] See also Sydney Gazette, 2 September 1834; Australian, 2 September 1834.

Published by the Division of Law, Macquarie University