Decisions of the Superior Courts of New South Wales, 1788-1899
R. v. Wombarty, 1837
murder - New England - Port Macquarie - Aboriginal defendant - Aboriginal interpreters - Aboriginal evidence - Aboriginal land rights - Brisbane Water
Supreme Court of New South Wales
Burton J., 14 August 1837
A discussion of some interest took place in the Supreme Court on Monday last on the subject of the trial of an aboriginal native, named Wombarty, belonging to the Port Macquarie tribe, who was arraigned before Judge Burton on a charge of murder, of an exceedingly atrocious character, committed at Port Macquarie. Mr. Windeyer, who had been ordered by the Court to act as counsel for the prisoner, moved that the case should be adjourned until an interpreter could be found sufficiently acquainted with the dialect of the Port Macquarie tribe, to explain to the Black the offence for which he was indicted. Neither the Reverend Mr. Threlkeld nor the interpreter, McGill, were sufficiently acquainted with that dialect to carry on a conversation with the accused, without the aid of a third party, and even with his assistance, the charge did not seem to be sufficiently understood by the prisoner. Under these circumstances he thought that the case should be adjourned. His Honor Judge Burton proceeded to put some questions to McGill the aboriginal, who has always attended at the Supreme Court with Mr. Threlkeld, when trials of his countrymen were about to come on. From his answers, it appeared that although he had been for many years under Mr. T.'s instruction, he is not yet aware of the nature of an oath. His Honor refused to allow the case to proceed until the Crown could furnish a proper interpreter, one to whom the Court could with propriety administer an oath. The Attorney General informed the Court that he murders of which the prisoner stood accused, had been committed under circumstances of peculiar atrocity, the men having been butchered while asleep in their huts. It was almost a matter of impossibility for the Crown to find an interpreter such as was required, but as his Honor refused to try the case, all he could do would be to write to the Magistrates at Port Macquarie to procure an interpreter from the interior, who should be instructed in the nature of an oath. The prisoner was then remanded until next Sessions.
Dowling C.J., 18 November 1837
Source: Sydney Gazette, 23 November 1837
Wombarty, a native black, was placed at the bar. The Attorney-General said that this was a very distressing case, and one in which he did not know how to act; the prisoner, as Mr. Justice Burton would remember, was placed at the bar in August last on a charge of murder; he is a native of the district of New England, at the back of Port Macquarie, a district so remote, and where the dialect is so different from that ordinarily spoken by the natives, that no European could be found who understood it. MacGill, the black who was known to the court, could partly understand him, but unfortunately MacGill himself was not a competent witness. He had no means of making the prisoner understand the charge, which was a most brutal murder - murdering four Europeans in their beds, and MacGill said that the prisoner confessed he had done it. He had written to the Police Magistrate at Port Macquarie, who had used every endeavour to procure an interpreter but could not get one; and Mr. McDonald, who was conversant with the dialect of most of the natives, could not make himself understood by him. Under these circumstances he (the Attorney General) was obliged to leave the prisoner in the hands of the court.
The Acting Chief Justice said that they must discharge the prisoner if the Attorney General had no case against him; it was a case for which the law did not provide. Wombarty was then discharged.
[ 1] L.L. Threlkeld referred to this case in his Annual Report of the Mission to the Aborigines, Lake Macquarie for 1837: see Miscellaneous Correspondence relating to Aborigines, State Records of New South Wales, 5/1161, pp 312-334. At pp 319-322, he says that Wombarty's was the only Supreme Court trial he attended as interpreter in 1837. Threlkeld said that Wombarty was charged with the murders of four Europeans. The Court appointed counsel for him, and Threlkeld visited him in gaol to ascertain his defences. His assistant, McGill, helped interpret from one language to the next. Wombarty said that the murders were committed by another tribe, in revenge for two Aborigines being confined in a lockup charged with spearing cattle. Threlkeld was frustrated that he had managed to elicit this information, but the same means of dual interpretation were rejected by the Supreme Court, as McGill could not be sworn as interpreter. Through this, said Threlkeld, the just principle that Aborigines were both subject to and protected by British law, became merely a legal fiction. Thus ``the strictness of the administration of the law becomes the height of injustice to all" (p. 322). Threlkeld went on to say that this injustice was central to the gradual loss of Aboriginal land. Their land, he said, fills our Exchequer's coffers with gold. When Aborigines could not be tried, private revenge took its place. Some stations were places for refuge for Aborigines, and others were dreaded for their barbarity and violence.
This remarkable document is all the more poignant due to the Myall Creek massacre, which took place in the next year, 1838. In that case, a supposed refuge proved to be no protection.
For further correspondence on the inter-racial clashes in northern New South Wales during 1837, see Miscellaneous Correspondence relating to Aborigines, State Records of New South Wales, 5/1161, pp 306-311. The clashes detailed there ultimately led to the Myall Creek massacre, as to which, see R. v. Kilmeister (No. 1), 1838; and R. v. Kilmeister (No. 2), 1838.
An important document in the State Records of New South Wales called ``Aboriginal Natives, tried before the Supreme Court of Sydney N.S.Wales from 1832 to 1838 (in Supreme Court Statistics, 4/2129.3) lists all Aborigines tried there from 1834 to 1837. For 1837, it lists Murphy (larceny), Wombarty and Black Betsy (misdemeanor). There were nine people listed for trial in 1836.
There was a similar result to that concerning Wombarty in another case earlier in 1837: the Sydney Herald, 23 February, 1837 reported: ``Carbawn Paddy, a native black, had been some time in gaol, on suspicion of burglary, but as there were many blacks of the same name charged with being concerned in the Brisbane Water outrages, and as there was some doubt as to his identity, he must consent to his discharge. Discharged."
The Australian, 24 February 1837 reported this as follows: ``An aboriginal black, named Corbon Paddy, had been for some time in gaol on suspicion of burglary, but as there were a number of blacks of the same name in the tribes concerned in the Brisbane Water outrages, and as there were doubts of the identity of the man, he (the Attorney-General) would consent to his discharge." This was heard before Dowling A.C.J., and Burton and Kinchela JJ, on 21 February 1837.
The Brisbane Water cases were heard in 1835: see R. v. Lego'me, 1835; R. v. Long Dick, Jack Jones, Abraham, and Gibber Paddy, 1835; R. v. Mickey and Muscle, 1835; R. v. Monkey and others, 1835.
For details of the lives of these Aborigines in custody, see Threlkeld's Annual Report of the Mission to the Aborigines, Lake Macquarie, for 1836, dated 31 December 1836 (in Miscellaneous Correspondence relating to Aborigines, State Records of New South Wales, 5/1161, p. 290).