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

R. v. Kilmeister (No. 1) [1838] NSWSupC 105

Aborigines, killing of - murder - Myall Creek massacre - Mitchell, massacre of Aborigines

Supreme Court of New South Wales

Dowling C.J., 15 November 1838

Source: Sydney Gazette, 20 November 1838[ 1]

(Before His Honor the Chief Justice and a Civil

Jury.)

Charles Kilmaister, William Hawkins, John Blake, John Johnston, Charles Toulouse, Charles Lamb, Edward Foley, James Oates, James Parry, George Pallister, and John Russell, were indicted for the wilful murder of one Daddy, an Aboriginal black native, on the 9th of June, 1838.  There were 9 counts in the indictment, charging the prisoners in different forms with committing the murder, and aiding and abetting each other in the murder of Daddy, or of an Aboriginal black to the Attorney General unknown.

For the prosecution - The Attorney General and Mr. R. Therry.

For the defence - Messrs. Foster, a'Beckett, and Windeyer.

List of the Jury - Thomas Holmes, Foreman; David Hill, George Humphries, John Harris, Joseph Hanson, Matthias Hooper, Charles Hensley, Thos. Harper, Henry Hough, William Howard, Andrew Higgins, and John Hall.

The indictment was read to the Jury.

Mr. Attorney General enquired whether the opposite side would require the Police Magistrate to leave the Court?  The Judge decided that he must.

The Attorney General then proceeded with his case. - The case, gentlemen, which you are called upon to try is one of no ordinary importance to this colony; I am sure the case will receive all the attention which it demands.  When 11 men are placed at the bar for a capital crime, it is itself sufficient evidence of the importance of the case.  Before going into the case, I must entreat you, gentlemen, to dismiss from your minds all impressions which may have been produced by what you may heard or read on the present subject.  As the information is so long, gentlemen, I may as well state its foundation: -- It is stated in various ways in order to meet the evidence which we shall produce.  When you hear the evidence you will know the reason why we were obliged to have so many counts.  The last count, gentlemen, charges the whole of the prisoners with casting the deceased Daddy into the fire and thereby causing his death.  Gentlemen, murder is regarded as the greatest crime in all nations, but here is a case which shews that there are gradations even in murder.  The information only shews at the utmost the death of two men, whereas, in fact, on the same day and in the same hour the lives of 28 individuals, men, women, and children, were sacrificed without any probable cause or provocation to palliate the atrocious crime in the sight of any laws human or divine.  Gentlemen, the prisoners at the bar were all living beyond the boundaries of the colony.  Kilmaister is a prisoner for life assigned to Mr. Dangar, Hawkins is a ticket-of-leave man, Johnston free by servitude, Toulouse assigned to Mr. Glennie, Lamb a ticket-of-leave man, Foley assigned to Mr. Flemming, Oates assigned to Mr. George Hall, Parry assigned to Mr. Eaton, Palliser and Russel free by servitude, and Blake assigned to Mr. Glennie.  You see, by this description, that they were all assigned, for one cause or other, to their respective situations, and you will perceive by the evidence that they were confederate in the slaughter of the native blacks.  On the 8th or 9th of June they met at Russel's, they were all armed and mounted, and proceeded to scour the country in pursuit of the blacks.  They went from station to station until they arrived at Mr. Dangar's.  The overseer was not at home but Kilmaister was there, also another assigned servant; they gallopped [sic] up.  The blacks on seeing them escaped into the house; this was the object of their persecutors; they wanted to get the whole of them into the house and thus get them into their power.  Two women and two ``picanninies" alone remained outside; the two little ones escaped by crossing a brook.  The prisoners on being asked what they wee about to do with their captives said, and I believe it was Russsel who was spokesman, that they were going to take them to the mountains to frighten them; however, they had not proceeded far when several shots were heard.  The whole party then returned, and three of them took fire-sticks and again proceeded to the spot where the shots had been heard.  Kilmaister produced a bloody sword which he had in his hand when he left before the shots were heard, but which was not then bloody.  The prisoner (Kilmaister) charged the men that took the fire-sticks to take care that the blacks were close together in order that they might all be consumed.  This expression could only apply to the bodies.  When Mr. Hobbs, overseer at Mr. Dangar's, came home he went to the spot and discovered a great number of bodies which had been burned on logs.  He counted 10 or 12 sculls of children and as many of women; he also saw the remains of a body which he is convinced was that of Daddy, a large powerful man.  Mr. Foster, overseer to Dr. Newton, also witnessed the dreadful sight.  When Mr. Hobbs returned he had great difficulty in discovering anything about the matter; Anderson, the hutkeeper, was afraid to say anything knowing that so many men of the different stations were leagued together for the destruction of the natives.  When Mr. Hobbs announced his intention of making the matter public, Kilmaister went on his knees to his master and begged him to say nothing about it.  He also stated that, when reprimanded for the share he had in the affair that he could not resist eleven men.  I am sincerely glad to see prisoners defended by counsel; I am glad to see the present prisoners in that situation, but a rumour has gone abroad that this defence is made at the instance of an association illegally formed, for the purpose of defending all who may be charged with crimes resulting from any collision with the natives.  I say that if such an association exist, that, if there be men who have joined together for the purpose of defending such men as these, the object of that society is to encourage bloodshed and crime of every description.  Gentlemen, I have too high an opinion of you, and of the discrimination of the public at large, to think for a moment that any bloody article appearing in any paper or papers will at all influence you in the verdict which you are to give this day.  Gentlemen, it has been promulgated from the bench, by the judges of the land, that the black is as amenable for his evil acts as the white men, and therefore as much entitled to protection by the laws.  These crimes were committed in cold blood, and arose from no dispute; it was malicious and not caused by momentary irritation and excitement.  I have endeavoured to do part of my duty, and I will now conclude by calling the witnesses.

Thomas Foster, Superintendent of Dr. Newton's establishment on the Big River - I have been at the Big River three years; I was there in June last; it is almost fifteen miles from Mr. Dangar's; it was, I think, on the Saturday before the 9th of June, I went to Mr. Dangar's; Mace, Mr. Dight's overseer, was with me; I stopped there that night; I saw Anderson the hut-keeper, and about thirty or forty blacks; there were men, women and children; I was accompanied by ten blacks, and Mr. Dight's overseer, when I went home; when I arrived I received information from John Merton, a boy on the station, in consequence of which I sent the ten blacks back to Mr. Dangar's; I never saw them again; I saw them about half a mile off going to Mr. Dangar's; it was about 4 in the afternoon, when I sent the blacks away; On Monday at about half an hour after sunrise, I saw a party of mounted men, some of them armed; there were about ten or twelve, all mounted, nearly all armed, I believe, with pistols; they came to the men's hut, in which were Dr. Newton's servants; two of them came near enough to speak to me; Oates and Kilmaister were the two; Oates is commonly known by the name of Hale's Jemmy; I asked him ``what's the matter?" he made no answer, but asked for the blacks; I said, ``God knows where they are now."  This was all I heard or said; they all galloped up together; they were all near enough to hear, but I can't say that they did; some of them got off their horses and went into the hut; I saw Johnstone afterwards pass the door of my own hut; all appeared to be going towards the stockyard; I can only recognise Kilmaister, Johnstone, Hawkins, and Oates; I know that Kilmaister and Oates were armed; Russell was with them; I do not know any other prisoner at the bar; I said to Kilmaister, ``are you after the blacks?" he said, ``they rushed my cattle yesterday;" he came in for his horse which had gone into the garden; I believe Kilmaister is an assigned servant to Mr. Dangar; I had been over to Mr. Dangar's the day before, but I did not hear anything about the cattle; I dare say they stopped about a quarter of an hour; I know Sexton, who lives on the farm; I did not see any black woman; when they left our place they went to Mr. Dangar's; I did not fall in with the party again; Dight's station was two miles off in another direction; I saw a party again about three miles off; I could not recognise them at that distance; two or three days afterwards I went to Mr. Dangar's and saw Mr. Hobbs; I accompanied him to a sheep station within two or three miles of the principle station; I parted with him at the sheep station, but proceeded to Mr. Dangar's, and remained there that night; in the morning Mr. Hobbs took me about half a mile from his house to see the remains of some blacks; Anderson's house is almost adjoining Mr. Dangar's; I believe he is a hut-keeper; I saw the body of a black man with the head on; the limbs had apparently been burned off; I saw another head without any body; and several other skulls so destroyed by fire as to render it impossible to say whether they were men or women; there appeared to have been a large fire recently; there were two mens heads that were not burned, and I am positive they were black men's heads; I did not examine whether there were any wounds on the body or not; I did not see any arms of a body; I did not see any smaller limbs; I tracked some horses from Mr. Dangar's to that place; I cannot say how many; but there must have been several; I did not see any other heads but those I have spoken off; I saw four or five heads altogether; I did not go close enough to examine how the head was separated; I only stopped ten minutes at the furthest; I was overcome by the smell; the place where these remains were, was the side of a ridge about half a male from Mr Dangar's; the fire appeared to have occupied a large space; I went direct home from the spot; I told the circumstance to several persons; I did not communicate with the magistrate; Mr. Hobbs was with me when I saw the skulls, but he went home; Mr. Hobbs told me he had been there before; we went together and left together when I saw them; Mr. Hobbs was obliged to keep further away than I did on account of the smell; on the Sunday I was at Mr. Dangar's I saw Kilmaister; he did not not [sic] say anything about the battle; it was the next morning.

Cross-examined by Mr. a'Beckett - What Kilmaister said to me was in answer to a question put by me; Mr. Hobbs was very much affected; the tracks were in the road from Mr. Dangar's to my place; I do not think I tracked the horses all the way to the spot where the fire had been; it had been wet I should think it very easy to track any horses; I would only swear to two being armed with pistols; it is customary to carry pistols in the bush; they are always mounted, it is in consequence of the danger ensured by meeting the blacks; I have been very fortunate; my station is a central station, and I believe that is the reason that I have not been annoyed; my neighbours have not been so fortunate; I cannot say whether the blacks are generally armed, that was the first party I had seen; I have not seen any childrens skulls, I have told you all I saw; Hobbs did not state that there was any difference from the night before; I supposed Mr. Hobbs to be affected by the effluvia; Mr. Hobbs did not then say he wished the blacks had all been killed.

Re-examined - The tracks were on a road which we term public; it is very little used; It is not usual to meet several men mounted looking for blacks; the ten blacks who accompanied me were quiet; they were not armed; I certainly think if there had been any skulls I should have seen them; I have seen Daddy.

By Mr. a'Beckett - I have seen Daddy; he is called Daddy.

By the Chief Justice - He was an old man.

By Mr. a'Beckett - The blacks were unarmed with the exception of a tomahawk or two; there might be three; I did not see any sticks; Daddy was a short man.

Mr. Hobbs - I have been superintendent to Mr. Dangar for two years; I am his principal superintendent; I recollect the beginning of June last; I left my station on the 7th June for the Big River; It was Thursday; I had a station sixty or seventy miles lower down; I left Kilmaister and Anderson in charge; There were about forty or fifty blacks on the station when I left; there were men, women, and as many children; the remainder were men young and old; as far as I saw they were quiet; they had been ten or twelve days on the station when I left; I returned to the station on the 15th June; I am certain it was the 15th, but I cannot recollect the day of the week; Anderson was at home when I returned and a black servant (Davy) whom I had left at the station; I saw Kilmaister in a few minutes after; I received some information which made me question Anderson; when Kilmaister came home, I sent for him and asked him what had become of the blacks I had left at the station? he said he did not know; I told him that I knew they were murdered and all about it; he declared that he knew nothing about it; I told him that he had been to Dr. Newton's and Mr. Dight's stations with other men; he said he was looking for his cattle; from what Davy said to me, I asked him to go with me and he took me about half a mile from my house in a westerly direction; there had been a shower of rain and the tracks of horses and of naked feet were quite discernable [sic]; it was a regular track; there were childrens footsteps; the horse tracks were on either side and the track of the naked feet were in the middle; they were in the same direction of the horse tracks; I arrived at a spot where there were a great number of dead bodies; but the stench was so great that I was not able to be accurate in counting them; I endeavoured to count them and made more of them sometimes than others, the most I made was 28; the skulls which had been burnt were easily discernible; the last number I counted was 20; I will undertake to swear that there were the remains of above 20; I saw some of the bodies; they were very much disfigured; I cannot say how many, I did know Daddy, he was an old man; he was the largest man ever I saw, either white or black; I saw a large body there, but the head was gone; from the size of the body I think it was his; I left Daddy on the station; I saw the childrens heads distinctly; there were 10 or 12 small heads, also some childrens bodies; I could not swear that it was Daddy's body; I am perfectly satisfied within my own mind that it was the body of Daddy; it was laying on its back; there was no head and the fire had destroyed nearly the whole of the flesh; I believe it to be the body of a man - the body of Daddy; I saw several heads; I endeavoured to recognize them but could not all; I saw both male and female heads; there were several which had altogether escaped from the fire; I should think they were cut off, I cannot say positively; Davy was with me that evening, the following morning Mr. Foster went with me; I tracked the horses up to the spot where the bodies were lying; at the corner of a paddock behind Anderson's hut I came upon this track, about 50 or 60 yards from my house; the fire occupied a space about half as large as this Court-house; there were the remains of a large log; I saw several blood-stains on the gravel all around; the extent of the ground prevented my counting the numbers correctly; the next day Mr. Foster went with me; I did not go close to the spot, I was unwell from the effects of the sight the day before; Mr. Foster was not there more than a minute and a half altogether; I had remained at least a quarter of an hour the day before; the only difference I perceived was that the native dogs had destroyed portions of the remains; there were a great many birds of prey, eagle hawks, &c.; I spoke to Kilmaister on the evening of the second day; I told him I thought it a very cruel thing to sanction the murder of these people as they were on such friendly terms, and also it was altogether through him that the blacks were permitted to be on the station at all; I said I considered it my duty to report it; he said he hoped I would not, not that he had anything to do with it, but the blacks having been with us for some time it would cause his removal; he appeared excessively uneasy and begged me not to report it; I wrote to Mr. Dangar; when I had written the letter, I went for the men to come down and hear it; they came; Kilmaister and Anderson came down; I read the letter; Kilmaister was very much agitated; he entreated me not to report the matter; he said the blacks had been spearing his cattle while I was away; he did not tell me that when I first told him of the murder; I requested him to shew me the cattle which he said had been speared; I was on the ``run" four or five days, but I saw no signs that the cattle had been disturbed; I felt satisfied that he had told me an untruth in order to prevent my relating the circumstance; there were no cattle speared at this time; the blacks I left on the station were brought there by Kilmaister; they behaved well; they were not offensive in the least degree; I had several conversations with Kilmaister; I pointed out the indecency with which the remains had been treated; he offered to go and bury them, but I told him that if his protestations of innocence were true, it would do him an injury to interfere in any such way, when the matter was investigated; he always denied knowing anything of the crime and I always believed him innocent until the depositions were taken; he was daily dancing and, singing with the blacks after his return from the run; I asked Kilmaister how the blacks were taken away, and he told me that the men took them; he did not say that he was present, but I understood that he was; I asked him what he was doing at Mr. Dight's station with the men; he said he was looking after his cattle, that he did not go with them, and that Davy would prove it; Kilmaister had a brace of pistols at his command, and he rarely went without them; I never went out without a brace; some few days after I was at Mr. Eaton's station I saw Perry; I thought he was the ut keeper; I said to him ``Jemmy, this is a bad job, and I am very sorry you are one of the number."  He answered, ``it is, sir, but I hope there will be nothing more about it;" Mr. Day, the P. M., went to the stations either at the latter end of July or the beginning of August; I had forwarded my communication to Mr. Day; Mr, Dangar has not yet settled with me, but I believe that I shall leave his employ on account of this affair; I was at the station when Mr. Day came there; I pointed out the place where the fire had been; the bodies had disappeared; there were some remains; ribs and children's jaw bones; I helped to pick them up; the heads had all been removed; I did not know by whom, I never heard; I never went to the place between the day that Mr. Foster was with me and the time I went with Mr. Day.

Cross-examined by Mr. Foster. - I had been at Myall Creek 15 months; I had been there nearly all the time; Kilmaister always denied having had anything to do with it; Kilmaister has always been a good servant, and he was afraid if this case were investigated he should be returned into government service; the fire-arms were there for personal safety; I would not go out without fire-arms myself; I do think it dangerous for any one to go into the bush far from the settlements without fire-arms; I very much doubt whether is in New South Wales a better servant than Kilmaister; I should not have thought he would wantonly attack another; I returned on the 15th June; Davy, the black, took me to the place where the fire had been; I was there on the evening of the 15th, and on the morning of the 16th; it was near sundown in the evening, and about 8 or 9 in the morning; the general appearance of the remains was the same; some of the bodies appeared to have been dragged away by the native dogs; I did not go near it the second time, but he (Mr. Foster) had not so good an opportunity of examining the place as well as I had; I saw the large body; the legs and arms were gone; I could not swear that it was a male; it was a large frame; I could not swear that the black called is not now in existence.

By the Attorney-General. - I could not swear that Daddy is dead; I have not seen him since; I never saw a female so large as that frame; I never say any of those persons who were on the station since; I have made enquiries for them.

Mr. Day, P. M., Mussel Brook. - I received information at the latter end of June, which induced me to report the circumstances to the Colonial Secretary; some time after I was directed to proceed with a party of police to that part of the Dungar's; on the evening I arrived Mr. Hobbs and one of the officers of the Mounted Police accompanied me to the spot, there appeared to have been a fire about 15 yards in circumference; there were a great quantity of fragments of bones; the place had the appearance of having been swept, and all large portions had been removed; I found a bone which I supposed to be the rib of a young child, the jaw bone of a human being, and a few teeth; I examined into the case and committed the prisoners; the prisoner Parry, I was informed, had expressed great regret for having been concerned in the affair; I accordingly had a communication with him, thinking perhaps that he had some communication to make; I found much difficulty in obtaining information on the subject.

George Anderson examined. - I am hut keeper, and assigned servant to Mr. Dangar; I was at Myall Creek five months; Mr. Hobbs is Superintendent; I recollect his going to the Big River in the beginning of June; I cannot say exactly how many native blacks were on the station; I know there were twenty and upwards; I could not say there were not forty; on a Saturday about ten men came on horseback, armed with muskets, swords, and pistols; they were all armed; I was at home when they came; I was sitting in the hut with Kilmaister, the stockman; they came up galloping, with guns and pistols, pointed towards the hut; they were talking to Kilmaister; they all came up together; Russell, Toulouse, Foley, Black Johnston, Hawkins, Palliser, Lamb, and Oates, were there; Blake and Parry I cannot swear to; there were about ten on horseback; I will not say parry was not there, but I cannot say I saw him; I cannot say who came out first; they were spread out into a line about to surround the blacks; the blacks were all camped, ready for the night; it wanted about an hour and a half of sun down; there were women and children with them; the blacks on seeing them ran into the hut; the men then got off their horses the prisoner Russell took a rope from his horse's neck, and commenced undoing it; while he was preparing his rope, I asked what they were going to do with the blacks; he answered me that they were going to take them to the back of the range, and frighten them; Russel went into the hut, and the blacks were brought out tied; I heard the blacks crying out for assistance; the mothers and children were crying, and the little ones that could not walk; Russel brought out he end of the rope that they were tied with, and gave it to one of the men on horseback; they then started, taking the blacks with them; the man who took the rope from Russel went in front; they were tied; one black was handcuffed; their hands were all tied, with the palms to each other; the rope was a very long one; they took all the blacks away, except two boys that jumped into the creek as the men were coming up; they left one black jin with me in the hut; they said she was good looking; I do not know who said so; they left another black jin with Davy; a little child was at the back of the hut while they were tying the blacks; instead of allowing her to go with the party, I pulled her into the hut, and kept her there; the oldest of the lot was called Old Daddy; he was a very old, big, tall man; they were all tied; they all complained of being obliged to go; the biggest boys were tied, and those who could not walk were carried by the jins; the women who carried the children were tied; they went towards the West from the hut; Kilmaister got his horse while they were tying the blacks; he went with them, and took the pistol with him; he had been talking with them five or ten minutes; I did not pay any attention to what they were talking about; I was frightened; Oates was armed, he had a brace of pistols; they had a great many amongst them; I saw Foley standing at the door with a pistol in his hand; I did not notice his sword; I saw the swords in the distance; Kilmaister went with them; I did not keep them in sight more than a minute or two; about a quarter of an hour afterwards I head the reports of two pieces, one after the other, in the same direction as they had gone; the sound was quite plain; I did not notice more than two; I should have heard if more had been fired; I did not hear any other sounds; I forget what sort of a night; I saw the same men the night after; they came back to my hut whence they had taken the blacks; they all came except Kilmaister; one of the party gave me Kilmaister's saddle; I asked where he was; he came in about twenty minutes afterwards; they stopped there all night; I did not know any thing myself, but I heard something about the blacks; on the next morning they went out on the same road as they took the night before; Kilmaister slept with me, the other men were in the hut all the night, but I do not remember what they talked about; after breakfast Russel, Kilmaister, and Flemings, took out fire sticks, and when they were going, Fleming told Kilmaister to bring the leg rope; they all went off in the same direction as they went the night before, excepting Foley, who remained with me; Foley and I were in the hut, and during the time they were away I asked Foley if all the blacks had made their escape; he said none that he saw; they were all killed but one; a short time before the party came home, Foley drew a sword belonging to one of the party; it was covered with blood; in about an hour they came home; I saw the smoke a short time after; they got up their horses, and Fleming told Kilmaister to go up by ad by and put the logs together, and to be sure that all was consumed; I do not recollect whether Kilmaister answered; Kilmaister did go in that direction almost immediately, and remained nearly the whole day; he said he was going for his horse; I never went to the spot, Davy went; Kilmaister was away nearly the whole day; his horse might have been easily caught; there was a great smoke; I was at the station when Mr. Dangar came; Kilmaister was at home; a piece of a sword was found in the hut; I picked it up, and gave it to Mr. Hobbs when the police left the station; it did not belong to the station; it was a piece of the handle; I gave it to Mr. Hobbs; he returned it to me, and I put it in the hut, where it remained till after the police went away; Kilmaister said to me, for God's sake mind what you say; do not say I went with them, it was not true, he did go with them, and at the same time; the women and children who were left with me I sent away with the ten blacks who had left our station with Mr. Foster; it was a moonlight night; I turned them all away the same night, because I did not want them to be killed by those men whom I knew to be out after the blacks.

Cross-examined by Mr. Windeyer. - I do not know exactly the hour the ten blacks came; I did send them away all together; I did think they might be killed; they did not leave the boys; they might not have killed the two jins; I do not remember asking for that jin; after they untied one for Davy, I asked for one for myself; I do not know their reason for not taking Davy; the only thing I know is, that Davy was more naturalised; I do not recollect their giving any reason for not taking Davy; I wish they had left them all; I did not wish any blacks to remain there; I wanted a jin that I had had before, not the one they left me; I will swear that I staid in the hut all night; Davy did not go with them; I never went to the place where the bodies were found; I did not see any bush fires on that day, or the day before; I heard the two shots quite plainly; I do not know whether I told all this to Mr. Hobbs; I told him that I could not help the blacks; I did tell Mr. Hobbs I did not know who they were; I never said that I was sorry I had not made a stronger case against Kilmaister; I do not recollect I ever said any thing of the sort to Burrows; I did not recognise more than one at the time of my first examination; I do not recollect how long after it was that the Magistrate called at the station; I remembered Russel and Fleming by name as well as his face; I did say to Mr. Hobbs that I did not know them; I had a second examination, because I wanted to tell more which I had recollected; I have been in the Colony about five years; I am here for life; I never said that my evidence would get me my liberty; I would take any thing I could get; I only ask for protection; I do not know what made my evidence more against them the second time I do not know; the Magistrate said he would commit me for perjury; he said I might be committed for not thinking; it was after this that I began to recollect every thing that was said and done; I have been punished twice, once for neglect of duty and being absent frem [sic] the station; I was not punished at that station; he took me to Court once; I was at New England; I do not think I deserved that punishment; I was eight days coming; I had a hundred lashes; I came here for robbing my master; I was ignorant, and misled by others; I am no thief; I told another to do it; I was apprentice; they said let Foley stop to take care of the arms; I thought it was meant to make me believe that there was danger; I have been frightened by the blacks; I saw a black fellow one night run away directly he saw me, and I was very much frightened; I knew Old Joey; he was at the station with the others; King Sandy, his wife, and little Charley, were also taken away; the jin I wanted was Heppita, she, Sandy, and Joey, were taken away, and another black fellow called Tommy; I could name nearly the whole if they were before me; I did not know all their names; Sandy, his wife, Charley, and the others I have mentioned were tied and taken away.

Re-examined. - Davy never belonged to that tribe; he belonged to Peel River; he came down to that station with cattle; the blacks were there when he came; I meant that I did not know them before; I was examined at my own place the first night that Mr. Day came; Kilmaister was taken into custody and I was examined; I was in bed when I was called before Mr. Day; I was frightened and confused; I knew them all by sight immediately when they were in custody, and I said at once that there were two with men who did not come to the hut; they left muskets, pistols, and two swords; I counted fifteen pistols myself; there were two Sandys, one ws with Mr. Foster and the other was takeng [sic] away; it was King Sandy who went with Mr. Foster.

John Bates, hut keeper, assigned to Mr. Dight's station at the Big River, about two miles from Dr. Newton's. - I was at Dr. Neweton's in June; I saw a party of men, apparently stockkeepers, at Dr. Newton's; they asked if there were any blacks there; I knew some of the men; I knew Hall's Jemmy (Oates); Lamb was at Dr. Newton's; Oates was not at Dr. Newton's, he was at our place on Saturday.  Mr. Eaton's man Parry was there, Hawkin's was there, Black Johnston was there also; one of them asked if there were any blacks cutting bark there; they all rode up together; some were armed; I saw two or three pistols, some small muskets, and a sword; I cannot positively say whether any of those I have mentioned had arms; I called the hutkeeper, and after speaking to him they rode away; on Monday, about 9 o'clock in the morning, the same party came to Mr. Dight's; when I came home I found the party in the hut; they had dismounted; I had been about the place; the woman was not in the hut a few minutes before; when I came back I found the men and a woman there; there might be ten or twelve men altogether; I do not know whether they were all armed; Hall's Jeffimy and Kilmaister were at our place on Monday morning; one of them, I do not know which, said they would call for the black woman; they remained about an hour and a half; Mr. Eaton's man Parry told em they had settled the blacks; they were all at the hut when Parry said this; I cannot say whether they heard the observation; no one denied it; I am sure Parry said it; I did not say anything about Mr. Foster; I cannot tell why he talked to me about the blacks; it was the day after the murder, the Monday; I do not know Toulouse; I do not know any more than those I have pointed out; I was sent for to know if I could identify Russel, but I could not.

Andrew Burrows assigned to Mr. Dangar. - I was at the lower station with cattle when Mr Hobbs went to the Big River, I know there were a great many blacks, men, women, and children, about the house; I know that there was an old man called Daddy; he was a large man; I was away about ten days; I do not know exactly what day I arrived at the station; I spoke to Kilmasiter about what I had heard; I said that I had heard the blacks had been taken away, that it was a shame, and that Mr. Hobbs would be angry; he said that he knew nothing about it, and told me to mind my own business, that there were some men came and took them away, he did not know where; I was living with Kilmaister before; I was at Russel's before that; I saw some men there, I do not know their names; Hawkins was there, Russel, Foley, Palliseer were there also, and I think Johnston; I know there was a man of color, but I did not speak to him; I arrived at the lower station before Mr. Hobbs; I started before him; it was the third night we stopped at Russel's; they were talking about the blacks and other things; they asked me if the blacks were at our station, I said yes, that they had been there four or five weeks; they then said those could not have been the blacks who committed the depredations down the river; I saw some fire-arms and one man was putting a leather strap to his sword; they said they were going to look after some blacks, one man was making a leathern pouch; it might be used for ammunition; I think they said they wished Jem Lamb was at home; I do not remember the number; I do not swear what number, and if I did swear it I cannot now remember; I met Fleming a short distance from Russel's hut; I cannot say how far; he had a musket or a fowling-piece; I called at Russel's on my way back; he was not at home; I only went into the milking-yard; I never knew Fleming before, but I was told it was him; Toulouse was at Russel's.

Cross-examined by Mr. a'Beckett. - It was not strange to meet a man armed; stockmen always go armed; I cannot say whether there was a larger man than old Daddy; I know Anderson; Kilmaister and he used to quarrel very often; I know one night when we were in bed he said he was sorry for one thing he had done; he was sorry he had not told the whole affair, and that it would have been worse for Kilmaister.

By the Attorney General - I do not know what he meant; I was afraid of Mr. Dangar's asking me questions; I can't say that it was in spite to Kilmaister; it was after Kilmaister had been taken away by the police that he saw this.

Warren Mace, a ticket-of-leave man living at Mr. Dight's - A party of horsemen came to our place; some of them were armed; I saw them when they arrived; they left a black jin at our station; there was one person desired her to be taken care of; there were ten or twelve; they stopped to breakfast; Kilmaister, Hawkins, Johnstone, Touloun, Toby, Blake, and Oates were amongst them; some of them were armed; there was nothing said about blacks; I have seen five or six men armed and on horseback before; I knew some of the men to be employed in the neighbourhood, and did not ask any questions.

Cross-examined by Mr. Foster - I saw King Sandy the day before - Sunday; I am not positive to the day of the week, but it was on the 10th; our place is about sixteen miles from Mr. Dangar's house.

Charles Reid - I am servant to Mr. Dangar; I joined the station at the Big River; I took some cattle down to the lower station; it is about sixty miles; we stopped at Russell's I think on Thursday, three days after we left Mr. Dangar's; I saw Palliser, Hawkins, Foley, and Toulouse; Burrows was with me; I do not recollect anything particular; they asked if we had any blacks up our way; they said those could not be the blacks who had committed the depredations down the river; I saw a musket and a sword; I think they said they had been down the river; that the blacks had been rushing the cattle; I knew the men; I did not ask them what brought them all together; the pouch was just such a one as is used for ammunition; I stopped at the lower station; I met Fleming; he was alone.

Mr. Hobbs recalled - I sent Burrows and Reid to the lower station with cattle on Tuesday the 5th; Russell's is about forty miles from our upper station; it was the evening of the 15th; I first saw the remains then.

Cross-examined - I did not watch them the whole of the way; I saw them start.

Mr. Foss, dentist - I seen a jaw-bone; there are two teeth in it; this is a part of a human jaw, and there are human teeth in it; they appear to have been burnt.

This was the case against the prisoners.

Mr. a'Beckett submitted that there was nothing in all the nine counts to go the jury.  He said the whole charge is about Daddy, or a black native, name unknown, and the evidence is perfectly circumstantial.  Mr. Hobbs is the only one who speaks to the identity of Daddy, and he could not swear whether the mass of putridity which he saw was a man or a woman; thus four counts fall to the ground. In the fifth count the case is set forth differently; it is said that some person, name unknown, lost his life, by a shot from a pistol; there is no proof that this party lost his life in such a way.  The sixth count charges Oates with the firing of the pistol, he having been seen with a weapon of the hut, but there is no evidence that Oates did fire it; and therefore, the simple circumstance of his carrying a pistol or pistols, was not enough for a case to go to the jury.  The seventh count relates the same circumstances, except that a sword is the weapon, and Foley is the man charged.  The same remarks which were made as to the pistol were applicable in this case.  Mr. a'Beckett quoted a rule about criminal informations, which related an instance of two persons who were executed for the murder of two persons who were then alive, although missing.

Mr. Foster supported the objections on the same grounds, adding that those counts which set forth the black male to have been unknown could not stand, inasmuch as it was proved that he might have been known had he been one of the blacks who left Mr. Dangar's.  The point which I submitted most strongly was, that no proof had been adduced that Daddy was not alive, or that a dead male black had been found.

His Honor said that the case must go to the Jury.

Mr. Dangar, St. Patrick's Plains. - Kilmaister is my servant, he has been a good and obedient servant; Anderson is also my servant; I would not believe him on his oath; he has been very troublesome, and on the most trifling occasion he is addicted to lying.

Cross-examined. - Anderson has been in my service since 1833, and for the first two years he was under my immediate superintendence; he has been two years under Mr. Hobbs; I have had him punished more than once, at a very recent occasion, at the last sheep shearing, he left his station to the mercy of chance for two or three days; I visited the station on two occasions during his absence; I would not believe him on his oath; if I discovered Kilmaister away from his station I would have him punished; I heard he was taken up; I have only heard what has been deposed; Kilmaister was not in my power; Mr. Hobbs is not under my displeasure on account of this case; I swear it; he is about to leave my service; his term is up; I have been at the station since the fire was there; Mr. Hobbs was with them; I understood from the evidence against Kilmaister, that he had joined a party; I did not see a part of a sword; Anderson has been troublesome, and has often told me he was at one place at one time, when I have discovered he was at another; on the very occasion for which he was punished he told me a lie; he said he had been to look for lost sheep, when I knew that they were safe at the station; at another time he was sent to a station at some distance, and he came home with a story of having lost his beasts, and I discovered he had been loitering at a station on the road; I am a subscriber for the defence of these men; I have a servant amongst them; I believe an honest one and perfectly innocent; as to how much I decline answering.

Mr. Cobb. - I know Lamb; he has been in my employ two years; he has conducted himself with every propriety, I always thought him a quiet, peaceable man.

Mr. T. Simpson Hall. - Oates is under my superintendence; I have known him for three years; he is a steady, correct man.

Cross-examined. - I superintend a large stock; some of it is my own; I have the superintendence of two stations on the Hunter, and three beyond the boundaries; he was without an overseer on the occasion of the present trial.

George Bowman, farmer and grazier. - Johnston has been in my service five years and a half; for the last four years and a half I have found him a good man; I always sent him in charge of cattle and goods; I preferred him, and he has always behaved well; he is free about two years; I only knew him while in my service; it is now two years since he left my employ; Mr. Cox offered him higher wages than I did, and he left me, or I should have employed him to this day.

Mr. Jolliffe, superintendent to Messrs. Bell - Palliseer and Russel have been under my charge two years; Russel has been a very active man, a good servant, and a quiet well-disposed man; Palliseer was the same; I always found them at home and quiet attentive servants.

Cross-examined. - I know nothing of this affair I was in Sydney at the time it happened.

This was the case for the defence.

His Honor in addressing the jury said, we have now been engaged many hours in one of the most important cases which has ever come under our notice since there has been a Supreme Court in New South Wales; the case has excited considerable interest, and you were warned at the outset to throw aside any impression which might have been made by hearing or reading descriptions on this affair.  I hope you will not be offended when I recall to your minds, that each of you when entering that box invoked God to witness that he would be determined by the evidence, and return a verdict according to the substance of that evidence; if that were not so; if it were possible a jury could be biassed [sic] by out-door impressions and return a verdict not according to the evidence, our dearest rights were at stake and public justice was a farce.  It was clear that a most grievous offence has been committed; that the lives of near 30 of our fellow creatures have been sacrificed, and in order to fulfil my duty, I must tell you that the life of a black is as precious and valuable in the eye of the law, as that of the highest noble in the land.  The black is answerable for his crimes, and some short time since, before I had the honour of occupying my present seat on this Bench, a man, a native was executed for the murder of a white man.  Having made these observations for the benefit of the public as well as the prisoners, I will call your attention to the evidence, and leave you to discharge your duty by considering whether the prisoners at the bar were the parties who committed the crime which has been proved.  I agree, said His Honor with the learned counsel for the defence, that a man cannot be committed for manslaughter or murder before a body is found; therefore the point you have just to determine is, whether Daddy was the unfortunate man who lost his life as set forth in the indictment, or whether a man, whose name is unknown to the Attorney-General, came to his death by violent means from the prisoners hands.  He added, that in some of the counts the prisoners were charged as accessaries only, but he observed that although they were charged as accomplices only, yet accomplices were by the law held to be principals, and if found guilty subject to the same punishment.  He mentioned an anecdote on this subject, which occurred while he was in England practising at the bar - A young man named Lewiston, went out with some companions for the purpose of committing a burglary, at the time they determined upon the robbery they contemplated no violence.  On arriving at the house in question, the noise they made attracted the attention of the owner, who arose, opened a window, and put out his head, and was immediately shot dead by one of the party.  They were all apprehended, and although charged only as accessaries, were found guilty and hanged for the murder as principals.

His Honor summed up at great length, minutely recapitulating the whole of the evidence, and the jury returned a verdict of - Not Guilty, after having retired about a quarter of an hour.

The prisoners were all remanded for trial on the same charges, the Crown Officers being dissatisfied with the verdict.  It is their intention to indict the prisoners for the murder of an aboriginal woman, and to call the same evidence in support of the case.  The trial is to take place on Monday next.[ 2]

 

Notes

[ 1]See also Australian, 17 November 1838; Sydney Herald, 19 November 1838.  The judge's trial notes are at Dowling, Proceedings of the Supreme Court, Vol. 156, State Records of New South Wales, 2/3341, pp 85-149.

This is the first of the two famous Myall Creek massacre cases (the other being R. v. Kilmeister (No. 2), 1838).  Preliminary notes on these trials are in Miscellaneous Correspondence Relating to Aborigines, State Records of New South Wales, 5/1161, 742-761.  They are preceded at 682-741 by an account of attacks by Aborigines at Port Macquarie.  See also 306-311. (Some of these documents are now online: see numbers 27, 27a, 27b, 87.)

The depositions in this case are held by the State Records of New South Wales, 4/9090; COD 392.  For one of the earliest of Gipps' reports to the British government on this case, see Gipps to Glenelg, 1 October 1838, Historical Records of Australia, Series 1, Vol. 19, 601.

For the release of two Aborigines due to insufficiency of proof, see R. v. Wombarty, 1837.

A year earlier, the British government was very concerned about the massacre of a party of Aborigines by a group headed by Major Mitchell: see Glenelg to Bourke, 26 July 1837, Historical Records of Australia, Series 1, Vol. 19, pp 47f, 390; and see Historical Records of Australia, Series 1, Vol. 18, p. 590, stating that ``a considerable number of these unhappy Savages were slaughtered" (Bourke to Glenelg, 15 November 1836, and see 25 January 1837, p. 656). This led to a debate in the newspapers: see, for example, Australian, 30 December 1836; Sydney Herald, 12 November 1838. On the governor's initial instructions for the Mitchell expedition, see Australian, 7 February 1837.

Major Nunn's massacre of even more Aborigines (which is examined at length by R. Milliss, Waterloo Creek: the Australia Day Massacre of 1838, George Gipps and the British Conquest of New South Wales, McPhee Gribble, Ringwood, 1992) was the subject of official correspondence as early as April 1838: Gipps to Glenelg, 25 April 1838, Historical Records of Australia, Series 1, Vol. 19, p. 396. Milliss also gives the best analysis of the Myall Creek murders.

Governor Gipps was exasperated by the number of clashes between whites and Aborigines: see Gipps to Glenelg, 21 July 1838, Historical Records of Australia, Series 1, Vol.19, 508f.

See also R. v. Douglass, 1838.

[ 2]Dowling recorded this dramatic decision by the crown as follows: ``At the prayer of Mr. Attorney General the prisoners were remanded for trial on another charge": Dowling, Proceedings of the Supreme Court, Vol. 156, State Records of New South Wales, 2/3341, p. 149.

Published by the Division of Law, Macquarie University