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

R v Mickey and Muscle [1835] NSWSupC 5

Aboriginal defendant, execution - rape - Brisbane Water - Aboriginal land rights - Aborigines, legal status - Aborigines, stolen generations - Wellington Valley - Aborigines, ``civilisation" of

Supreme Court of New South Wales

Burton J., 12 February 1835

Source: Sydney Gazette, 14 February 1835[1 ]

Mickey and Murphy, two aboriginal natives, were placed at the bar, charged with committing a rape on one Margaret Hanshall, on the 5th November last.

Margaret Hansall, sworn - I am free; came free to the colony; in the beginning of November last, I lived with Mr. and Mrs. Lynch, at Sugarloaf Creek; as servant; at that time some blacks came to the hut where I was living; the prisoners at the bar were among them; I can swear to them both; we observed there were no gins amongst them, and began to be alarmed; Mr. Lynch was some short distance from the house; I told Mrs. Lynch to send for her husband, as I thought the blacks were no good; Mr. Lynch then came in and some of them shook hands with him; there was a calf just killed; they were offered the head of it which they refused, and said they would have the whole of it, and they made a fire and cooked the calf and eat it; they had a fowling piece with them which they were pointing at one another, and made several other motions which I cannot describe; they then took me out of the house forcibly, five or six yards away; Mr. and Mrs. Lynch at this time were defending themselves against another party of blacks that were about the house endeavouring to get in; they then took me forcibly over some mountains, about 3 miles from the house; both the prisoners at the bar violated my person there, and another held a fowling piece over my head, swearing with a horrid oath, that if I did not lie still he would blow my brains out; there were 11 blacks came to the hut of Mr. Lynch, and the whole 11, from first to last, violated my person.  (The description this witness gave of the conduct of the aborogines [sic] towards her, was shocking, almost beyond pescription [sic].

John Lynch sworn - The blacks came to my house on the 5th November; they carried Henshall into the bush, and kept her there 5 hours; when I found her she was covered with wounds and bruises, and nearly all her clothes torn off her back; I could not run to her assistance when she called me at the hut, as I was there defending my own house, wife, and children, from another attack they were making; I had a scythe in my hand, and made use of it as well as I could; I am told that one of the party died from the wounds he received; I recollect one of them told me he wanted my child to do what he liked with; that was a child not above 9 years of age; he also laid hold of my wife, and told me he wanted to take her into the bush to ravish her; at least words to that effect.

Mrs. Lynch deposed to the same effect as her husband.

This closed the case for the prosecution.

The prisoners in their defence, said that they did not do it, it was somebody else.

The Jury, after retiring about half an hour, returned to the jury box, and had Margaret Henshall again put into the witness box; who distinctly swore to the person of the prisoner Murphy.  They then returned a verdict of Guilty against both.

His Honor passed sentence of death on them both, to be executed on such day as His Excellency the Governor should be pleased to appoint.

 

Burton J., 12 February 1835

Source: Sydney Herald, 16 February 1835

 

Micky Mickey and Charley Muscle, two aboriginal natives, were indicted for assaulting and violating the person of Margaret Hanswell, a free servant to John Lynch, at Brisbane Water.  The detail of this case, which is not fit to meet the Public eye, discloses circumstances of a peculiarly atrocious character, and points out the necessity of adopting rigorous measures for the preservation of the lives and property of the settlers from the attacks of the native blacks.  Being found guilty of the crime charged against them, sentence of death was passed upon them, after an impressive charge addressed to them by His Honor the Judge, which was interpreted to them by the Reverend Mr. Threlkeld.  They appeared much agitated and expressed extreme fear of death.  The prosecutrix, a simple looking girl, about seventeen years of age, stated, that there had been eleven in the party by whom she was assaulted twice; but the two prisoners were the only individuals whom she could identify, from the strong resemblance the blacks bear to each other.

 

Source: Sydney Herald, 16 February 1835

 

THE BLACKS.

 

To the Editors of the Sydney Herald.

Gentlemen, - Howsoever it may be doubted that a people can be justified in forcibly possessing themselves of the territories of another people, who until then were its inoffensive, its undoubted, and ancient possessors: - and howsoever may be doubted the right or the policy of our forcing our Laws on the Aborigines of this Country, who still reject our civilization, and haunt the recesses of our, or their land; it is not, it cannot be doubted that we are bound to be conciliative in the former, and most lenient in the latter case.  The law of conquest applies not here, for it presumes a previous grievance, and a previous state of warfare.  It is true there are crimes that violate the laws of nature, and which appear to be so understood and punished by every people, and every tribe; - but when the culprit is forcibly subjected to the legal procedure of a foreign people, whose language he does not understand, it ought here to be remembered that he stands on a footing the law did not contemplate.  I was never more struck with this truth than this morning on entering the Supreme Court, and seeing two Blacks at the English Bar.  I felt the awkward, embarrassing doubt, how far the Juridical Forms of a highly civilized people were applicable to the rude savage.

It appeared that eleven Blacks carried off a young women into the bush, where they kept her some hours, and all, severally perpetrated the crime of Rape.  One of the prisoners, Hickey Hickey [sic], was identified by all the three witnesses, who were the girl herself, her master, and mistress.  The other prisoner, Charley Myrtle, or Murphy, was identified by the girl only.  Lynch and his wife said, they saw all the party - he (C. M.) might have been there - but they did not see him - indeed Lynch expressed his belief that he was not one of the party.  So that the case against the last prisoner rests altogether on the girl's evidence - who says, she recollects him principally because his teeth were whiter, than those of the others.  At the same time she confesses that all the while she was with them, she was in a state either of confusion of stupefaction; that at her first seeing him in the gaol she did not recognize him, but at the second sight, she did.  In one word, the case against Charley Myrtle is the uncorroborated evidence of one person; and that person had never seen him before; and at the moment she saw him, she was in a half stupified state.  On this evidence the man is convicted, and sentenced to death.

Every white resident in the Colony will readily acknowledge the difficulty - nay, often the impossibility of recognizing blacks whom they may have frequently seen.  Indeed, in this very case, another person and myself, saw these two prisoners pass us in the street after the trial, among some other black prisoners, and we disagreed as to their identity.

It ought to be remembered that the English culprit stands on very different grounds from the native black.  The former knows something of the law under which he is tried - understands every word that is said, objects - cross-examines - calls his exculpatory evidences - and avails himself of manifold circumstances and finesses, of which the latter is utterly ignorant.  Here stands the white man - the enlightened, often the artful, not unseldom the successful defender of a true accusation; there stands the savage - the mute - helpless spectator of a scene in which his life is at stake.  The laws of England decree that the prisoner shall have the benefit of every doubt; so would the spirit of the same laws decree that the foreign barbarian prisoner should have the benefit of that doubt, even in a double, in a treble degree.  In this case there is not only doubt; but I almost say, insuperable doubt.

Apart from the Juridical view of the case - suppose the man is innocent - his tribe well know it - his execution will rankle in their breasts, and when our countrymen talk of the unerring justice of our polished scales, they will point to the instance of a murdered relative.  Neither ought to be omitted in the politic view of this case, the lewd lawlessness of our out stationed assigned servants and we know that the savage deems retaliation neither crime nor disgrace.

This case now lays before another tribunal - where the legal opinions of the Judge are offered to the extended views of the Ruler - where Mercy is tempered with Justice - and where Clemency finds a home.

Feb. 12th, 1835.

AM. JUS

 

Execution, 27 February 1835

Source: Australian, 6 March 1835[2 ]

 

On Friday morning last Mickey Mickey, the aboriginal native, who was convicted and sentenced for a rape upon the female servant of Mr. Lynch, at Brisbane Water, underwent the sentence of the law at the gaol in Sydney.  This is only the second instance of the execution of an aboriginal native, and it consequently attracted a considerable crowd, amongst whom were many of the sufferer's countrymen.  He ascended the ladder without shewing much trepidation, nor did he appear afterwards to be in any very painful state of apprehension.  In about ten minutes time the drop fell, and he was launched into eternity; he struggled violently for a few minutes before life was extinct.

It is difficult either entirely to approve or to condemn the decision of the Government on this occasion; there is but one thing which can be urged in extenuation of the offence for which he suffered death - which is, that that crime is a custom amongst these, as we believe it is amongst most other savages; this is the first step in their courtship - and it is hopeless to expect to inspire them with our estimation of offences of this nature, till they participate with us in the blessings of knowledge.

It is generally admitted that the efforts that have been hitherto made to civilize the aborigines of this Country have entirely failed; sums are annually votes for the attainment of this object, and an establishment is still kept up at Wellington Valley; sufficient time has elapsed to shew that hemodus operandi is essentially wrong - and that while the present ideas upon the subject prevail, no better result can be expected than disappointment and failure.

We do not allude alone to the futile endeavours of the Missionaries, though we are of opinion that of all others theirs are least likely to be successful; we can point to other schemes -- amongst others to the establishment at Eastern Creek some eight or nine years ago, where it was endeavoured to get them to cultivate the soil after our fashion; in both these plans the Colony has had to witness failures - and notwithstanding, no improvement is attempted, and the natives are consequently as far as ever from the light of civilization, and in a fair way of extermination by their own and by our irregularities.

Whether there may be not some means as yet unpursued of accomplishing this object, we will not attempt to decide; but it is our earnest desire, as the first step towards a better plan, that that which is at present pursued, should be at once abandoned; while that continues, there is reason to fear the Government will be contented without further improvement.

To teach religion and literature to these poor wretches is absurd - the one it is impossible that they should understand - the other cannot be accomplished without putting a force upon the inclinations of the adults, to which they would never submit, or else removing them when of the tenderest age from their natural guardians, which involves cruelty to one party, and no lasting benefit to the other; experience shews that where young children have been so removed and trained up, the presence of their kindred has had the invariable effect of inducing them to exchange the trammels of civilization for the unconstrained freedom of their native habits.

It may appear perhaps rather unphilosophical, or perhaps not very humane, to ask in conclusion, why should we make any further attempts in the matter; we must be allowed nevertheless to doubt whether it would not be both wise and humane to adopt the principle of non-interference; those who are acquainted with their natures capacities and habits, agree that they are happy and comfortable, and that their troubles are in exact proportion to their vicinity to or their separation from Europeans; if instead of attempting their civilization, some pains were taken to ensure their absence from our haunts, the grand remedy would be nearer accomplishment than by any other means.

 

Notes

[1 ] See also Australian, 17 February 1835.  See also Burton, Notes of Criminal Cases, State Records of New South Wales, 2/2418, vol. 17, p. 24.  This same attack led to a prosecution of others for robbery in a dwelling house: see notes to R. v. Monkey, 1835.

For other trials of Aborigines in this period, see R. v. Lego'me, 1835; R. v. Monkey and others, 1835; R. v. Long Dick and others, 1835.  On 20 February 1835, the Australianreported that the judges had ordered the Aborigines who had been convicted of several offences to witness the execution of Bowles (R. v. Bowles, 1835) and that they manifested the utmost indifference at the sight.

[ 2] See also Australian, 27 February 1835.

Published by the Division of Law, Macquarie University