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

R v Beane [1835] NSWSupC 93

murder - manslaughter - Aborigines, killing of - self defence - squatting - trial by jury, rejection of judge's advice - law reporting

Supreme Court of New South Wales

Dowling J., 14 November 1835

Source: Sydney Herald, 19 November 1835[ 1]

William Beal stood indicted for the murder of an Aboriginal Black, called Six-toed Jackey, at Tagagree, in the County of Bligh, by shooting him with a pistol laded with powder and ball, which passed through his head near the left eye on the 4th April, 1835.  It appeared that the prisoner was an assigned servant to Sir John Jamison, and employed as a stock-keeper at a distant station at Mamoye at the distance of four hundred miles from Sydney.  In consequence of the numerous reports which reached Sir John Jamison about the period named in the endictment [sic], of repeated murders and robberies by the Native Blacks in that part of the country, he addressed a communication in His Excellency the Governor, requesting that a Military force might be sent out for the purpose of apprehending the offenders and protecting the lives and property of the settlers, he having had two stock-keepers barbarously murdered within a short period; but His Excellency returned an answer, stating that there was none of the Military to spare, and observing at the same time, that if Gentlemen graziers chose to go beyond the ordinary protection of the Country they must of necessity protect themselves.  In consequence of this communication, Sir John Jamison sent several stand of arms for the protection of his stock-keepers, together with a warrant addressed to his Superintendent, authorising him to apprehend and lodge in custody such of the Blacks as had been concerned in these transactions of whom Six-toed Jackey was reputed as principal.  In the early part of the same month, the prisoner surrendered himself to A. Busby, Esq. Magistrate for the County of Bligh, as having shot the deceased, and made a voluntary statement which was read in Court, to the effect, that he had captured the deceased about twenty-five miles from Taragree, to which place he had brought him in handcuffs; on reaching Sir John Jamison's station, he released him from handcuffs and permitted him to go at liberty about the hut; while the prisoners attention was drawn from the deceased, he seized a knife from the table and rushed at the prisoner, attempting to stab him which he avoided; he made a second attempt which the prisoner again avoided, when deceased made a rush towards the chimney for the purpose of escaping, it being constructed of bark only, when the prisoner seized a pistol and shot him, considering himself authorised in preventing his escape.  The other Blacks hearing he was shot, went to the hut, took away the body and buried it.  Sir John Jamison give the prisoner a character, as an orderly humane man.  The Jury being asked if they found the prisoner guilty of murder, they returned a verdict of Not guilty; they were then asked if they found him guilty of manslaughter, and they again returned a verdict of Not guilty.

 

Source: Australian, 17 November 1835

 

Saturday. - Before Mr. Justice Dowling and a Civil Jury.

William Beane an assigned servant to Sir John Jamison, was indicted for the wilful murder of one of the aboriginal natives at Tungee, in the County of Bligh.

It appeared from the evidence of Mr. Alexander Busby, the Magistrate, that the prisoner went before him and acknowledged to have killed the said black; under the following circumstances.

In consequence of the murder of two of Sir John Jamison's men, about 12 months ago, he caused enquiry and search to be made for this aboriginal black, named six toed jackey, and issued a warrant and sent it to his overseer to place in the hands of one of his stockmen, who gave it to the prisoner.  Bean captured the said black, handcuffed him, and took him a distance of twenty five miles, where he stopped, un-handcuffed the prisoner, and gave him his breakfast, shortly after the black attempted to escape up the chimney of the hut, and Beane pulled him back, when he seized a large knife and made three attempts to stab prisoner - the third attempt, prisoner shot him.

His Honor Mr. Justice Dowling, in summing up, pointed out to the jury that the prisoner was not legally entitled to capture the said black, the warrant not being directed to him, and that this therefore was a case of murder, as the blacks were as much entitled to protection, as any white man.  They were amenable to our laws, and in case of infringement, were liable to punishment - when therefore assailed, they had a right to legal redress, but there were some circumstances in the case which the jury might think reduced the charge to manslaughter, it was therefore entirely a matter for their consideration.

The Jury retired for about half an hour, and returned a verdict of justifiable homicide.  - Mr. Sydney Stephen, counsel for the prisoner.

 

Source: Sydney Gazette, 17 November 1835

 

William Bean was indicted for the wilful murder of a native black, commonly called six toed Jack, at Tongee, in the county of Bligh, on the 4th of April, 1834.

This case rested solely on the prisoner's voluntary confession before Mr. Busby, J.P. in which he stated, that he received instructions from his overseer, who had been commissioned by Sir John Jamison, J. P. to apprehend the deceased, who had murdered to of Sir John Jamison's servants some time before.  He was supplied by his overseer with a musket, a brace of pistols, with ammunition, with which he proceeded in search of the deceased.  The prisoner apprehended the deceased, and took him to his hut, a distance of twenty-five miles; some time after they had been at the hut, deceased seized a knife, rushed at the prisoner, and made several attempts to kill him, and then attempted to escape up the chimney, which he would have easily accomplished, when the prisoner presented, and fired a pistol at deceased, which wounded him a little above the left eye, of which wound deceased shortly after died.

Sir John Jamison deposed to having sent a warrant to his overseer for the apprehension of the deceased, and authorising him to send the stock keepers to capture him.

His Honor in putting the case to the jury remarked, that by the Laws of England the aboriginal natives were amenable to, and necessarily were entitled to the protection of the laws of England, so far as their connection with British subjects; had the deceased been in the custody of an authorised officer acting on a legal warrant, and had he then tried to make his escape, such officer would have been justified in restraining him by any means in his power.  In the present case the legal authority, and the deceased, who was a free man under unjustifiable duresse [sic] had a right to make his escape, and the prisoner must answer for his actions.  The jury in taking the voluntary confession of the prisoner, must receive every part of it, both to the condemnation and exculpation of the prisoner.  He thought he might safely direct them to acquit the prisoner of the charge of murder, but he was certainly guilty of manslaughter.

The prisoner received an excellent character from Sir John Jamison, who stated him to be a humane kind man.

The jury retired, and after some time his Honor sent to enquire if they were likely to agree, when they returned answer by their foreman, that there was no chance of their agreeing.  The jury returned into Court in half an hour, and returned a verdict of - Not Guilty.  The prisoner was discharged.

 

Notes

[1 ] The Australian, 17 November 1835, recorded this trial as being held on 14 November 1835, before Dowling J. and a civil jury.  It called the defendant William Beane, though it is clearly the same trial.  The Sydney Gazette, 17 November 1835, gave the same details as theAustralian, though it called the defendant Bean.

There is a striking difference of tone between the three newspaper reports, thus the three reports are reproduced here.

The Australian, 14 April 1834, noted that Sir Edward Perry three months ago pledged to explain alleged cruelties against Aborigines, and stated that it was now time he did so.

Published by the Division of Law, Macquarie University