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

R. v. Hall [1837] NSWSupC 53

attempted murder - Aborigines, attack on - Twofold Bay

Supreme Court of New South Wales

Dowling A.C.J., 11 August 1837

Source: Sydney Herald, 14 August 1837[1 ]

Friday. - Before the Acting Chief Justice and a Civil Jury.

James Hall was indicted for discharging a pistol at one Bill Winn, otherwise called Bill Well, and wounding him in the belly and side with intent to murder him, at Marrabarrandi, on the 24th February.  Other counts charged the prisoner with intending to do some bodily harm, to maim, &c.

The prisoner is assigned to Dr. Wilson, and has charge of some of the Doctor's cattle, near Twofold Bay.  On the day laid in the indictment, he went to the hut of a servant of Captain King's, named Ward, who resides in the neighbourhood.  Soon after he had gone into the hut, Ward heard a noise, and found the prisoner in dispute with a black fellow named Bill Well, whom he accused of having killed his cattle, and said he would take him to his master.  There was an old black fellow in he hut who went out with Ward; Hall endeavoured to tie the hands of the black fellow, who said ``altogether white fellows b--- rogues," and soon afterwards Ward heard the report of a pistol, and saw Bill Well run away, and the prisoner said he had got away from him and got on his horse and rode after him; in abut twenty minutes afterwards, Bill Well came back to the hut, when Ward found that he was wounded in the belly.  In cross-examination Ward said that he thought the black fellow was endeavouring to call the other blacks in the neighbourhood.  In his defence the prisoner said that the black fellow made a rush at him with his tomahawk, and he shot at him in his own defence, he endeavoured to apprehend him because he had detected him in the act of killing his master's cattle.  Mr. Cobban, a stipendiary Magistrate, deposed that he called at the prisoner's hut soon after he had shot at the black fellow, when the prisoner came to him and told him that he had endeavoured to apprehend Bill Well, and that in consequence of his making a rush at him he had fired at him.  They proceeded together to the black camp, where Bill Well was lying, intending to apprehend him, but when he got there he found that he was so badly wounded that he could not take him over the mountains, and being in a hurry to proceed to Maneroo to investigate a case of murder, he left him there.  He was aware of the character of Bill Well as a notorious cattle killer, and heard that since he had recovered from the effects of the wound he had killed several head of cattle belonging to Mrs. Bunn.  His Honor in putting the case to the Jury observed, that the prisoner was justified in apprehending the black fellow if he was aware that he had injured his master's property; that the blacks were equally under the protection of the law with the whites; and if they were of opinion that the prisoner had maliciously shot the black fellow with intent to kill him, they were bound to return a verdict of guilty.  On the other hand, His Honor pointed out the different circumstances of the case that were in the prisoner's favor, and told the Jury if they considered the prisoner, under the circumstances, was justified in firing for his own defence, they must acquit the prisoner.  Without retiring from the box, the Jury returned a verdict of Not guilty.

 

Dowling A.C.J., 11 August 1837

Source: Australian, 15 August 1837

 

FRIDAY. - Before Acting Chief Justice Dowling, and a Jury of Civil Inhabitants.

James Hill was indicted for discharging a loaded pistol at an aboriginal native named ``Bill Will," or ``Bell Well," at a place near Twofold Bay, on the 24th February last, with intent to kill and murder him, or to do him some grievous bodily harm.  The circumstances of the cases were these.  Bill Will was a powerful man, and an active depredator among the cattle in the Twofold Bay districts.  He had speared three head of cattle on that very day, belonging to Dr. Wilson, in whose service he was, and the prisoner rode after him to apprehend him; he was brought into the prisoner's hut with another old native black, and told to hold up his hands, that straps might be put on them, for the purpose of conveying him before Dr. Wilson, who was a Magistrate.  Bill Will escaped out of the hut, and the prisoner went after him.  When at some distance from the hut, the native turned upon the prisoner with his tomahawk, and the latter then shot him in the belly.  He was very ill for some time in consequence of the wound, but he had since recovered, and had renewed his depredations among the cattle.  Dr. Wilson had read to the neighbouring stock-keepers, a letter he had received from the Attorney General, to the effect that the Aborigines were as much under the protection of British Law, as any of the European inhabitants; before which time it seemed to have been the prevailing opinion, that they might be summarily disposed of with impunity.  The prisoner rested his entire defence on the assertion that he fired the pistol in self-preservation, and while he was endeavouring to secure Bill will in lawful custody for spearing his master's cattle.  He denied that he had shot the black while running away, as had been imputed to him, and alluded to the wound itself being in the belly, near the navel, as confirmatory of his statement.  The prisoner called upon Lieutenant Cobham of the Mounted Police, who stated that the prisoner himself had told witness he had fired at Bill Will in the manner he now alleged in his defence; and Lieutenant Cobham also said that he knew that native to be a notorious cattle spearer.  Dr. Wilson gave the prisoner, who had been in his service for nearly four years, an excellent character for humanity.  The learned Judge told Jury that if they believed the prisoner had fired the pistol in self-defence against a more powerful man than himself, who he was endeavouring to secure in lawful custody, and not from any malicious, or wanton motive, the prisoner was entitled to an acquittal.  The Jury returned a verdict of ``Not Guilty," and the prisoner was discharged.  Mr. Foster defended the prisoner.

 

 

Notes

[ 1] See also Dowling, Proceedings of the Supreme Court, Vol. 141, State Records of New South Wales, 2/3326, p. 1, which stated the victim's name as Bill Will or Bellwell.

On the same day, 11 August 1837, George Green was found not guilty of ``the wilful murder of a native black, called Diamond, on the Paterson River, on the 3rd January, 1836, by discharging a pistol at him."  He was tried before Kinchela J. and a military jury: Sydney Herald, 14 August 1837.

The Australian, 15 August 1837, reported the latter case as follows: ``George Green was indicted for the wilful murder of a native black named Diamond, at Patterson's River, on the 3d January, 1837, by discharging a loaded pistol at him.  The prisoner called a witness to character, who considered him a moderately honest man.  The Jury returned a verdict of `Not Guilty,' and the prisoner was discharged."

 

 

Published by the Division of Law, Macquarie University