Decisions of the Superior Courts of New South Wales, 1788-1899
R v Monkey  NSWSupC 6
Aboriginal defendant - burglary - Brisbane Water - murder - capital punishment, gibbet - capital punishment, hanged in chains, abolition - reception of English law, hanging in chains - reception of English law, date of reception - Williams River - Ireland, political trials
Supreme Court of New South Wales
Burton J., 11 February 1835
Wednesday. - The following Aboriginal Natives were arraigned for a burglary in the dwelling-house of Mr. Alfred Hill Jaques. of Brisbane Water, and taking therefrom a quantity of tea, sugar, beef, and sundry articles of wearing apparel [sic]:- Monkey, Major, Whip'emup, Legamy, Charly, Mussel, and Little Dick, four of whom were found Guilty; the others are detained on another indictment. The Rev. Mr. Threlkeld, of Lake Macquarie, Missionary to the Aborigines, was sworn as interpreter, and Messrs. Therry and Poole, at the suggestion of the Court, acted as their Advocates.
Burton J., 12 February 1835
Source: Australian, 13 February 1835
Amonst [sic] the sentences passed by Judge Burton in the Supreme Court yesterday, was one of transportation for life to Van Diemen's Land upon five of the Aborigines, who had been tried for the murder of a shepherd near Brisbane Water; it was a melancholy sight, and called up feelings of a painful nature; it could not but occur to us, that, the prisoners being as ignorant as the beasts, it was almost a mockery to bring them to the unintelligible formality of a trial.
The observations made by His Honor in passing sentence were not intended, of course, to have any influence upon either the prisoners or their countrymen; on the contrary, His Honor expressed a hope that it would be generally received amongst them that the five prisoners had been put to death - thus preserving one great end of punishment, and that not at the expense of an outrage upon humanity.
The above proceedings might teach a lesson to the Swan River Government - under certainly not greater provocation than the above murder - the Governor, and a chosen band went out with sword and spear against the Aborigines of that quarter - killed as many as they could, and parted with the kind promise of repeating their visit on the same term, if they speared any of their cattle!
Source: Australian, 17 February 1835
The late trials of the Aborigines for their different offences, together with their sentences have caused a good deal of discussion; public opinion appears to be somewhat divided on the questions of justice of trying them by our laws, and according to our forms, and of that of their punishments.
With respect to the first question - as to the justice of trying them by our laws and forms - it is clear that offences against person and property can no more be suffered to pass unreprehended when they are committed by the aborigines, than if the offenders were of any other nation; there is nothing to excuse outrage on their parts, for our usurpation, as it is sometimes termed, of the soil, has been attended with no outrage or violence upon them; of course we only speak generally; particular instances there may have been, and there may be still, of that inattention to humanity and justice which has in other countries invariably followed the collision of the sons of civilization with those of nature; but generally, we repeat, they have suffered no wrong at our hands; we have occupied spots upon which they have been accustomed to find subsistence; but over the nearest hills they have found spots equally suitable to their habits, and varying in no particular from those from which they have been compelled to retire; it would be difficult to shew any real injury that they have sustained at our hands, at least of a nature to rouse their passions, or to incite them to the infliction of injuries.
The question then is, how are these outrages to be stopped? The law of retaliation is one which no man of reflection would suffer to exist, except as a dernier resort; he would know too well the cruelty and wrong to which the unbridled revenge of man would certainly lead him.
In this case then, as in that of the civilized man, we must have recourse to the laws- and unless it can be shown that the object would have been better accomplished by some other means than a trial in our Courts and according to our forms, the proceedings of the Authorities have been just and politic. As to saying that, from the circumstances of their ignorance of our laws and language, they should be held guiltless, or at least suffered to escape without suffering a penalty, these considerations may have an effect upon their punishments, but cannot be reasonably suffered to work the future detriment to ourselves which would ensue from their impunity.
It has been said that a tribunal should have been erected at the seat of their outrages, where they might have been tried and punished in the presence of their countrymen; this, it is urged, would have made a greater impression upon them than their trial, and subsequent punishment, however more severe the latter might have been, in Sydney; the observations of Judge Burton satisfy this objection; it is not the forms of the trial that form the impression - it is their removal from their tribe for ever, and the idea that will prevail amongst them that they have been put to death; their execution at Brisbane Water could scarcely have a greater effect upon their minds than the dim uncertainty of their fate, which will, perhaps, preserve the circumstance as a tradition, long after the lives of the present generation.
It is however, probable that, notwithstanding the benevolent intentions of the Authorities, they will not be suffered to exist long amongst the aborigines of Van Diemen's Land, whither they are sentenced; the natural, or perhaps more correctly speaking, the universal feeling of animosity that prevails between members of different and strange tribes, will render their lives as insecure as if they were sent to the Five Islands, or any other hostile Territory.
It has been supposed by some persons, but we have reason to believe without foundation, that these poor wretches are to be worked in irons - or at least subjected to some species of ``prison discipline;" the idea is too monstrous for belief; we are persuaded that not only useless and uncalled for severity will be avoided, but that all that can be done to render their situation bearable, will be the aim of both Governments.
We may be allowed to observe, by the way, upon the singular contrast which is exhibited between the interest that is felt for the future comfort of these men, and the barbarous indifference with which transportation in its worst shape, is seen inflicted upon those at home, whose situation strikingly resembles that of these aborigines; it is urged that these latter are ignorant and unenlightened - that they are incited by new wants, and opportunities, and that, from circumstances, they cannot have a fair trial; now take those classes of men who are transported for agrarian disturbances in England or Ireland; here you have almost equal ignorance, and a pressure of poverty which reduces the wants of the natives to absolutely nothing; and in the case of Ireland, if not of England, in addition to their ignorance, you see them so completely the victims of agitators and designing men, that they positively think themselves not only justified in their excesses, but even meritorious and patriotic.
As for the fairness of their trial, we should be glad to know how many persons in Ireland have been falsely accused, and convicted through bad management on their own parts, or perjury on the part of others? The well authenticated tales of such unfortunate convictions in that country, are numerous, and occur, we fear, much oftener than is suspected by those who are not fully acquainted with the Irish character; how far the accused in England have always a chance of being tried fairly, may be learn't [sic] from the following :--
Extract from the Enquiry of the Commissioners
into the Affairs of the Corporation of London;
Mr. Clarke is the Clerk of the Peace for the City
``Mr. Commissioner Drinkwater enquired of Mr. Clarke, whether the statements publicly made of the hurried manner in which the trials at the Old Bailey, for minor offences, took place, had any foundation. Mr. Clarke stated, that not only minor offences, but even those for which the prisoners were sentenced to transportation for life, were conducted in a manner extremely discreditable to the administration of justice. He had known one Middlesex Jury convict seventy-theee [sic] persons at one sitting ! ! !
``Mr. Alderman Harmer presented himself to the Commissioners and stated, that it was his intention to bring forward the present extremely objectionable practice of trying prisoners against time, before the Court of Aldermen, and if he could not obtain reform there, to carry the subject to a higher tribunal. The system, both at the Old Bailey and at the Middlesex Sessions in all cases except where the Judges preside, was calculated to bring the administration of criminal justice into odium. `The verdict of the Jury was the mere dictum of the Recorder - hundreds of innocent persons had been transported -- females especially.' His long experience in the practice of the Old Bailey enabled him to know, that the present system required thorough purgation."
Once again, the Sydney Herald had the judge and date wrong. The trial was held before Burton J. on 11 February 1835: Burton, Notes of Criminal Cases, State Records of New South Wales, 2/2418, vol. 17, p. 25-35. The defendants were recorded in this source as Little Dick, Whip-em-up, Monkey, Charley Muscle, Little Freeman, Leggamy, Major, Currinbong Jemmy, and Tom Jones. Jaques gave the principal evidence, and said that the Aborigines had also raided some convicts' huts nearby. He said that when they came to his property (on 25 October 1834), he presented his fowling piece (small gun) at them. Three groups of Aborigines joined together and began throwing stones and a spear (which hit the second witness, William Rust, a convict). Jaques said he was driven out of the house, and it was filled immediately and the things were stolen. There were about 60 of them in the first group and they were later joined by another 20 or 30. The confusion of their names was because they were sometimes called by the place where they were born, and sometimes by the place where they reside. The main problem was identification, the witnesses, including Threlkeld, saying that they looked alike and had changed since the time of these events. Whip-em-up, Monkey, Currinbong Jemmy and Tom Jones were found guilty, and the rest not guilty.
This same attack on 25 October 1834 led to a second trial before Burton J. On 5 August 1835, Hobby and Maitland Paddy were tried for robbery in the dwelling house of Jaques (Burton, Notes of Criminal Cases, State Records of New South Wales, 2/2420, vol. 19, p. 1). In this, Jaques said that he saw a party of 50 or 60 Aborigines approach his house and demand meat in a hostile manner. He and Rust closed up the house, barricading themselves inside. This time, he said that the spear hit Rust in the side. Jaques said that Hobby boasted that ``black fellow was best fellow" which he took to mean the most powerful. Eventually they escaped to another farm for refuge, leaving Jaques' to be ransacked. He also claimed that the Aborigines had told him that they came from different tribes; they had gathered together to commit robberies. Jaques denied that any whites had committed violence on them. Rust said he asked Hobby why they were stealing: ``he said Black fellow master now rob every body - white fellow eat bandicoots & black snakes now". Rust estimated that there were 150 Aborigines involved altogether. Hobby was found guilty, and Maitland Paddy not guilty. Hobby was sentenced to death recorded (p. 6).
Death recorded meant a formal sentence of death, without an intention that the sentence would be carried out. Under (1823) 4 Geo. IV c. 48, s. 1, except in cases of murder, the judge had considerable discretion where an offender was convicted of a felony punishable by death. If the judge thought that the circumstances made the offender fit for the exercise of Royal mercy, then instead of sentencing the offender to death, he could order that judgment of death be recorded. The effect was the same as if judgment of death had been ordered, and the offender reprieved (s. 2). In effect, it usually meant a sentence of transportation for life.
In this particular case, the original intention was to send the eight Aborigines to Van Diemen's Land where they would be assigned to settlers, but the Lieutenant Governor of Van Diemen's Land objected to that plan. Instead, they were confined on Goat Island in Sydney harbour, where they were employed in cutting stone but kept separate from other prisoners. They were to be taught ``Christian Religion" and ``English Education": Bourke to Secretary of State,Historical Records of Australia, Series 1, Vol. 17, p. 718.
There was another trial, R.. v. Toby, on 12 February 1835, before Burton J. (See Burton,Notes of Criminal Cases, State Records of New South Wales, 2/2418, vol. 17, pp 63-69.) Toby was another Aborigine, charged with robbery in the dwelling house of John Lynch, at Sugar Loaf Creek on the Wollombi in the Hunter River district. The robbery took place on 5 November 1834. According to Lynch, eleven Aborigines went to his house when he and his wife were there. After feeding them, he said, they robbed his house. Toby struck Lynch with a waddy; he was later stabbed in the thigh with a spear. Lynch had a scythe in the fight and the Aborigines a gun. Lynch cut three of them with the scythe, one of whom later died. He owned the property by grant and had been there for nine years, but his nearest neighbour was five miles away. He had one free servant girl (who was raped: see R. v. Mickey and Muscle, 1835).
Whip-em-up, Monkey, Currinbong Jemmy, Tom Jones and Toby were all sentenced to death recorded on 12 February 1835: Burton, Notes of Criminal Cases, State Records of New South Wales, 2/2418, vol. 17, p. 69.
Without stating which of these cases was in issue, the Australian, 1 May 1835 reported: ``The sentence of transportation for life to Van Diemen's Land, passed upon the Brisbane Water Blacks, has been commuted to 2 years labor [sic] in irons on Coal Island; they are kept separate from the rest of the prisoners, under charge of one of their own kindred, and employed in stone cutting, in which they have already become tolerably expert."
On 22 August 1835, another Aborigine, known as Charley, was convicted of murder, and sentenced to death: Australian, 25 August 1835. The governor sought to have him hanged in chains at the place of the crime (the Hunter district), but Forbes C.J. pointed out that an English Act of 1834 (4 & 5 Wm 4, c. 29; and see 2 & 3 Wm 4 c. 75) had abolished that punishment and that it had not formed part of the original sentence against Charley. However, C.H.Currey points out that the English Act was adopted in New South Wales only in 1837: Sir Francis Forbes: the First Chief Justice of New South Wales, Angus and Robertson, Sydney, 1968, p. 470; and see Australian, 28 August 1835. Charley was apparently hanged in the normal way at Dungog, after being forwarded by the steam-packet: Australian, 4 September 1835. The correspondence between Forbes C.J. and the governor on this point is recorded in the Chief Justice's Letter Book, 1824 - 1835, 4/6651, State Records of New South Wales, pp 405-407.
The trial of Charley was not reported in the newspapers. The fullest details of the case are in the brief, at Miscellaneous Correspondence relating to Aborigines, State Records of New South Wales, 5/1161, pp 145-157: two Aboriginal accessories were also charged, known as Tom and George. The victim was called Alfred Simmons, and the crime took place at the Williams River. The evidence suggested that it was part of a general attempt to get rid of all of the Europeans in the area: ``They said there were plenty more Blacks in the Bush that they would kill all the White men in the neighbourhood" (James Smith, p. 156). For archival correspondence on this case, see p. 142.
See also Sydney Herald, 27 November 1834 on allegations of Aboriginal depredations [sic] on stock at Brisbane Waters. The newspapers were not always unsympathetic to Aborigines: seeAustralian, 10 January 1834, for its recognition that there had been an invasion by the British and of the need for land to be reserved for Aborigines. See, too, the letter from Glennie to Scott, 22 June 1835, about these Aboriginal attacks in the Hunter district: Miscellaneous Correspondence relating to Aborigines, State Records of New South Wales, 5/1161, p. 168.
As the British expanded their effective occupation of New South Wales, violent clashes continued: see for instance, Bourke to Glenelg, 22 December 1835 (Historical Records of Australia, Series 1, Vol. 18, pp 235-237) reporting the death of Cunningham, the botanist, at the hands of Myall Aborigines. Three Aborigines were apprehended by the Mounted Police on suspicion of murder, but two escaped and Bourke thought it unlikely that there would be sufficient evidence for a conviction.