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

R. v. Kilmeister (No. 2) [1838] NSWSupC 110

murder - Aborigines, killing of - Myall Creek massacre - autrefois acquit - law reporting - contempt of court, press commentary - Aborigines, legal status - Aborigines, evidence by

Supreme Court of New South Wales

Burton J., 26 November 1838

Source: Australian, 27 November 1838[ 1]

MONDAY. - Before His Honor Mr Justice Burton and Civil Jury.

Charles Kilmaister, James Oates, Edward Foley, John Russell, John Johnstone, William Hawkins and James Parry, were indicted for wilful murder, at Myall Creek, on the 10th of June last.

The information contained twenty counts; which charged the prisoners severally with being accessory to the murder of a male and female aboriginal child, by shooting them with a pistol loaded with powder and ball; of which they (the aboriginal children described,) then died.  Other counts charged the death of an aboriginal male black, called Charley, by shooting with a pistol, cutting with a sword, and casting into a fire, whereof he died, on the day and year before named.

At the close of the reading of the information, which occupied an hour and a half reading, Mr a'Beckett who was retained for the prisoners rose and applied to be allowed time to plead to the information.  The learned gentleman contended that the prisoners had not been furnished with a copy of the information, which was long and required some time, to be answered.

The Attorney General contended that the prisoners were not entitled to a copy of the information, but at the same time, he did not object to the application.

Mr a'Beckett admitted that the prisoners were not entitled to a copy of the information, but he thought that the Court would not refuse so reasonable a request, when it was considered that the prisoners were on a trial for their life.

Mr Justice Burton said that he thought the application was quite reasonable, and he thought that under the circumstances, the prisoners should be allowed time to plead to so lengthy an information, and he certainly was inclined to acceed [sic] to the  application.

The Attorney General said that, so far from being inclined to oppose it, he should immediately consent to it, as it had been his intention to apply to the Court for a postponement of the trial in consequence of the publication of certain articles through the public press, which must, in the course of human feeling, bias the trial of this case; and he was of opinion that if the case was now brought on and tried, that it could not have a fair and impartial consideration by a Jury who must in a certain degree be biassed [sic] by what they had heard out of the Court.  Besides which he would be prepared with affidavits to shew that the case could not be now tried without prejudice, and that public justice would be in jeopardy, by the case being proceeded with at this time.

Mr Justice Burton said, that if the Attorney General was now prepared with affidavits to support his application to the Court, he would be ready to hear the cause shewn against the present proceeding with the trial, but if the Attorney General was not prepared with those affidavits, the application was premature, and he (the Attorney-General), had better reserve his remarks until the application came, in course of practice, before the Court.  He (Mr Justice Burton) regretted that the Attorney General had not adopted the mode which had been adopted by the Attorney General, on an application to the Chief Justice of England to suspend the publication of a case which had not been terminated.  If the Attorney General had adopted such a course, he (Mr Burton), was certain that an order would have been given to that effect.

The Attorney General said, that had he been aware that such a course would have been pursued by the press, he certainly would have made the application, but he had not been aware, nor could he have supposed that such a course would have been pursued by the press - until that morning, when a copy of the Sydney Herald had been put into his hand, and he thought that such a publication tended to pervert the ends of justice.  He would willingly consent to the postponement of the case until the following morning, at which time he would be ready to submit his affidavits to the Court, and as the prisoners' counsel had only applied for a postponement of the trial until ten o'clock on the following morning, he could not have any objection to the application.

Mr Justice Burton said, that he thought the application on the part of the counsel for the prisoners, was very reasonable; the inforamtion [sic] was long and complicated, and he felt he was bound to grant it.

The Attorney General said, that after what had been said, he was bound to apply to the Court for an order to restrain the press from publishing any thing more relating to the  case, as he believed that it would prejudice the jury.

Mr Justice Burton said, that the Attorney General could take what course he thought proper, but he would advise him not to be hasty in his application, nor in the course he intended to adopt.  For in his (Mr Justice Burton's) opinion, he thought, and he said so with confidence, that the course of public justice would never be perverted when a case came before a Jury and a Judge of New South Wales.  He thought there was too much honour in the Supreme Court of New South Wales, to ever bias a case that might come before the Court.  He hoped, and not only hoped, but could assert, that the Judges, as well as the Juries, were never biassed [sic] by any thing that occurred out of doors, in the decision of a case; and he felt with pleasure that the administration of justice was safe in the Bench and Jury of New South Wales.  However wicked persons might attempt, by their writings, to sway the course of justice, he would never admit that the moral stated of the Colony was so bad as had been represented, and that the course of justice could be perverted by any thing that was said out of the doors of the Court.

The Court then granted the application for the postponement of the trial until the following morning (this morning), when the trial will come on in full, and we shall make it a point of giving a full report of this trial.

 

Burton J., 27 November 1838

Source: Sydney Gazette, 29 November 1838[ 2]

 

The seven men charged with the murder of the blacks at Liverpool Plains having been placed at the bar, the Clerk of Arraigns proceeded to call on them for their plea.

The prisoners pleaded a demurrer to the first five counts of the indictment charging them with killing a child name and sex unknown.  To the 6th, 7th, 8th, 9th and 10th counts, they pleaded autrefois acquit; and not guilty to the remaining ten.

The pleadings set forth that the prisoners ought not to be tried on the first five counts as they were not sufficient in law, and therefore the prisoners were not bound to answer them, inasmuch as they were charged in that set of counts with the murder of an aboriginal native child without any further description; they therefore prayed judgment on these counts in their favour.  A plea of autrefois acquit was laid to the five following counts setting forth that the prisoner had, on the 13th November, been tried in this Supreme Court on an information filed by the Attorney General that certain persons had wilfully and maliciously murdered a male aboriginal black at Mr. Dangar's station, Myall Creek, of which charge they and others then at the bar were all acquitted, and that the aboriginal male child with whose murder they now stand charged is the same felony and murder for which they were before tried on the aforesaid information laid by the Attorney General, and of which charges they were before acquitted.

The Attorney General explained that the first five counts were quite sufficient in law.

Mr. Justice Burton did not see the the [sic] necessity of the first five counts.  The individual murdered must be either male or female.  The last verdict was given in favour of these prisoners; he did not think it right to state any impression of the effect of that verdict; he thought the Attorney General should proceed with deliberation and duly consider the case before he commenced it.  His Honor said the Attorney General could enter a nolli prosequi for those counts.

The Attorney General said it was necessary to vary the counts on account of the evidence; he should wish particularly to ascertain the averments as made in the prisoners' pleadings; whether it was stated that the male aboriginal black for whose murder they had been already tried, was the same aboriginal native black set forth in the present information.

Mr. Justice Burton believed that the averment set forth that the felonies and murders with which they (the prisoners) now stand charged are the same as those for which they were tried and acquitted on a previous information.

The Attorney General having obtained a copy of the pleadings, said he took issue with the averment, inasmuch as the felonies and murder for which they are now brought to this bar are not the same as they were before tried for; and, moreover, that the child here set forth is not the same as described in any previous information.

Mr. a'Beckett said the replication ought to be in writing on the part of the crown.

Mr. Attorney General believed it was his privilege, as Her Majesty's Attorney General, to answer either verbally or by writing as he pleased.

Mr. Justice Burton then stated what he believed to be the substance of Mr. Plunkett's replication, viv [sic]. - That as to the matters contained in the 1st, 2nd, 3rd, 4th, and 5th counts, the Attorney General saith that the said matters therein contained are different in law.  As to the several pleas of the prisoners on the counts 6th 7th, 8th 9th, and 10th in the information, the Attorney General saith that the felonies and murders for which the said Attorney General has so laid the said information against the prisoners at the bar, are not one and the same as the felonies and murders for which the prisoners  have been already tried and acquitted as set forth by the said prisoners in their averment.  The Attorney General denies that the male aboriginal black for whose murder they were before tried is the same aboriginal male black now set forth in this present information, and prays that the issue may be tried by the country.

A jury was then empannelled to try the issue taken with the prisoner's averment on the second five counts.

Mr a'Beckett said that in cases of this sort there should be certainty and precision, without doubt or ambiguity.  The Court cannot allow any doubt here, and if there be any it will tend in favour of the prisoners.  The charge of killing an aboriginal child is not descriptive enough.  The prisoners might plead guilty to the murder of a male child, and on that concession be found guilty of the murder of a female.  It is material a person should be aware of what he is accused, and law itself does not presume that an aboriginal black child means an aboriginal black female child.  Mr. A Beckett submitted that this uncertainty was fatal to the first five counts.

Mr. Foster - The information does contain sufficient accuracy to enable prisoners to plead in answer.  It is especially incumbent on prosecutor to set forth the charge clearly and distinctly.  Here it says that the party killed was unknown, and having at the commencement been thus vague, he ought to have been more particular afterwards; the sex, surely, of the individual might have been set forth - it is not, and cannot now be proved.

Mr. Windeyer quoted a case in support of what had been said by his two friends.  The learned gentleman challenged the Attorney-General to point out a single information in which either the name or sex of the child is not set forth.  I suspect he said, that whoever has made out these informations has been misled by some of the works which are erroneous as far as our practice goes.  In Hale we find the words ``cujusdem ignoti," but the Latin termination here shows the sex, which termination and its effects do not appear to have been noticed by the writers of the information in this case.  Mr. Windeyer submitted it would be carrying uncertainties to an alarming extent, and hoped the Court would show parties that they must be much more exact.

The Attorney-General said that it was not necessary to prove the sex of the child; so long as it could be proved that a child had lost its life, it was enough.  When all the distinctive organs are destroyed, how is it possible to distinguish and describe a sex.  It is not necessary to describe the name or sex of the deceased; however, should the party be known to the jury, the prisoner might, if that be not provided for by another count, be acquitted.  If a pleader undertake to prove the sex, he must do it; but until he does undertake it, he need not.  In cattle killing or stealing the law provides terms; it is known also that children are protected by law, and the term is well and clearly defined.

Mr. Therry followed shortly in support of the first five counts against the plea of ``demurrer" entered by the defendants.  One of his learned friends on the other side had relied on ``conjusdem ignoti," but had chosen to forget the word ``homins," which was plainly understood.

Mr. a'Beckett was impervious to the arguments of Mr. Therry, and could not understand how the murder of a male child and also of a female child was really but one murder.  Mr. a'Beckett had not heard, nor could he find a case in which the name or sex were not set forth on the face of the indictment.  Mr. a'Beckett submitted that this uncertainty was fatal to the five counts.

His Honor thought the information was as certain as was required by law, as it was only required to set forth that a human being had been killed, without setting forth whether it be male or female.  He was of opinion that there was such certainty in the those counts as to enable him to overrule the demurrer, and to judge that the prisoners should plead to those five counts.

Mr. Justice Burton.  The proof is with the prisoners, therefore Mr. Foster you will have to begin.

Mr. a'Beckett. - The gentlemen of the Jury will have, under the direction of his Honor, to decide whether the felonies of which the prisoners were formerly charged are not the same as those with which they are now charged.

Mr. Gurner, Chief Clerk of the Records, produced the record of an information for murder against the prisoners at the bar and others.  The prisoners were tried on the 15th of November, 1838, before His Honor the Chief Justice, and all found not guilty.  It was admitted that the prisoners at the bar were part of the men who were tried on that information.

The Attorney-General said, this was no proof for this case, they say that these men were acquitted of a murder, not the murder of which they are now accused.

Mr. Justice Burton. - Surely Mr. Attorney-General does not wish them to prove his meaning.  How is it possible that they can prove whether one person stated to be unknown is or is not the same as a person set forth a second time also unknown!

The Attorney-General paid all due respect to his Honor's opinion, but thought him self bound to advance his own opinion in discharge of his duty.  The learned gentleman quoted authority; the proof of issue lies with defendant, and as yet there is no proof in this case.

Mr. Therry followed the Attorney-General very briefly.  There were twenty-eight aboriginal natives, unknown to the Attorney-General, who appear to have been destroyed, and the acquittal for the murder of one does not do away with the crime as far as the others are concerned.  The defendants, in order to support their plea, must prove that the crimes of which they are now accused are precisely the same as those of which they were before acquitted.  If they could prove that there was only one person murdered, and that they had been acquitted of that murder, they would have established their grounds, but no identity of the persons set forth in the information have been proved, and that, therefore, unless they do prove identity, it was hoped his Honor would not allow this plea to stand.  If it were allowed, it would be a passport for crime; if a man be acquitted of the murder of an aboriginal native, name unknown, he will always be able to start this plea, as we have no other way of naming them.

Mr. a'Beckett thought there was nothing to go to the Jury except the admission of his being, as to the identity of the prisoners.  In the first information we were charged with the murder of a male aboriginal child.  Is an aboriginal native boy not a black?  It is quite absurd to talk about the identity of persons who are set forth as unknown, and how would it be possible to prove the identity of those persons set forth in the informations, and all that defendants had to do was to prove the identity of the prisoners.

Mr. Foster said there was scarcely anything to be said in addition to what Mr. a'Beckett had advanced; but he thought the Attorney General wanted them to prove what it was utterly impossible to prove.  The informations are evidently the same - a male aboriginal child is a black, and a male aboriginal black may be a black child.

Mr. Windeyer replied to a case quoted by Mr. Therry, and repeated that the plea was fully established, and that he should not consequently detain the court any longer.

The Attorney General - The arguments on the case go thus far - a dozen murders might be committed and the same parties tried for them, and if acquitted for one, could not be tried again.  They laugh, because in this case there are 28, or about that number; and because, although the prisoners at the bar were acquitted in one case, they are to be tried again in another; but I say, that if 28 or 58 murders have been committed, each of those murders is a separate crime, even though not one of the names of the parties murdered be known.  The word ``child" is a description of itself recognised by law, and not to be compounded with man.  We have different terms for differently aged aged [sic] cattle, and in our calendar there are crimes which differ in magnitude - as the case of the parties offended is more or less.  Who would think of an adult, when he hears the term child?  It is certainly usual to give a full description of a party in a warrant for apprehension, but not in an indictment.

Mr. Justice Burton - This case has occupied the court long time, and he had time enough to consider it thoroughly.  This case did not resemble common cases, and as many other blacks were killed, some whose names might be known, and others not, Mr. Justice Burton thought that Mr. Foster ought to go a little further; and he would admit more evidence on the part of the defendants if Mr. Foster chose to adduce it.  It was very likely that, at the end, the whole of the parties concerned would fid themselves in very nearly the same position, but he wished to proceed in due form as had been enforced in so long an argument as that of the Attorney General.

Mr. O Reilley - I am attorney for prisoners; I recollect the prisoners being tried ten or twelve days back; the witnesses were turned out of court; I remained; I heard the opening speech of the Attorney General; I understood the Attorney General to state that several persons had been killed on the same day, mean, women, and children, at the same place; I know that bones wee produced, I believe when mr. Day was in the box on the part of the crown; Mr. Foss, who was afterwards examined, thought it was the rib of a child; I would not take upon myself to say whether the Attorney General stated any number.

Cross-examined by the Attorney General - There was a count for the murder of Paddy; the evidence was not confined to that or to the case of another black; childrens' bones were produced; I understood Mr. Hobbs had said there were 28 bodies; evidence did come out about the murder of some women and children; the circumstances were applicable to the whole of the cases; I do recollect that the counsel for the defence did contend that it had not been proved that Daddy's body had been found; Mr. Hobbs swore positively that he did not know whether the body found was a male's or female's; Mr. Hobbs did mention a head with a beard; it appeared to me that the evidence related to the whole of the case; there was the rib of a child, a jaw bone, and some teeth which had been burned.

Re examined - I do not recollect the Chief Justice remarking anything about one of the prisoner's saying only one woman had escaped.

Mr. Kemp - I am in the habit of attending in order to report cases in this court; I was present on the trial of these men; the objection taken by counsel was - that the body found had not been proved to be the body of a man; there was also an observation made as to Foley's having said that they were all killed but one woman.

Cross-examined - The Attorney General drew his Honor's attention to what Hobbs swore about the beards; I do not see how the evidence could be separated; the subject of the beards was merely an incidental observation; Daddy, according to one witness, was a very large man.

The Judge, in summing up, directed the jury's attention to the points as to whether it was proved that Daddy was killed, or if not, if it had been proved that a black male had been killed; as if even the last had been proved, it was sufficient to support the informations.

The Attorney General observed, that the case for the Jury, was a collateral point as regarded the trial of these men, if the Jury decided that the counts were the same in this information as those set forth in the former information of course they would fall to the ground.

Mr. Justice Burton said this was a case of law and fact; there was an important point for their consideration; it had occupied considerable time in arguing this case; and as was stated in the argument of the Attorney General, if a prisoner or prisoners commits the murder of 28 persons, I am bound to tell you that each of those murders is a separate crime; had we not received in evidence in this case proof that the inquiry was directed in the last trial, to a large body, supposed that of Daddy, and that the rest of the matters came out in evidence; thus we see that the enquiries were not directed towards a male black alone; as, had it been so, we might then have understood that it was a male black child.  It is therefore for you, gentlemen of the Jury, to decide whether they were tried on the same charge, as is now set forth against them in the five first counts of the present information.  The point of law on which these pleas are drawn, is thus - no man can be put in jeopardy twice for the same offence.  The question is, whether the prisoners are in that condition.

The Jury, after having been absent more than an hour, were sent for by His Honor, who told them that he thought, perhaps they did not exactly understand what they had to consider.  The prisoners say that they have been tried for the crimes alledged [sic] against them in this information; it is for you to consider whether they have or not.

The Jury again retired, and after a few minutes returned for the crown.

The prisoners were then called upon for their plea.  Mr. a'Beckett said they were now considering their plea, and that all the pleas which were open to them before they took the ``demurrer" were still open to them.

His Honor said they were. - M r. Therry quoted at some length, when Mr a'Beckett rose and said, he would save his friend his trouble, as the prisoners would at once plead not guilty.

The Attorney General rose to apply for postponement of the trial to Thursday morning, on account of the absence of Mr. Hobbs, a principal witness.

Mr. a'Beckett said that His Honor would observe that this affidavit was exceedingly vague.  The Attorney General was well aware of the time the trial was coming on, and ought to have had his witnesses ready.  His Honor having been satisfied that there was a jury summoned for Thursday, did not know how he could resist the application, but Mr. Hobbs certainly ought not to have been absent.

 

Burton J., 29 November 1838

Source: Australian, 1 December 1838[ 3]

 

THURSDAY. - Before Mr Justice Burton.

On the opening of the Court, when the Registrar called over the pannel, the following Jurors were severally fined for non-attendance, Messrs William and Robert Jenkins, Richard Kemp, William Kerr, James Kay, William Kearnes, Alfred Kennerly, Francis Kenny, Isaac Levy, Thomas Lockeyer.

The Attorney General observed, that out of the pannel of 48, only 28 remained to chose out of, and he begged that the Court would impose the highest fine on the absentees.

The Court did not think this a case which particularly called for the indiscriminate imposition of the highest penalty; and it did not think that imposing the highest penalty would bring the parties to the Court that day to remedy the inconvenience.

The Attorney General said, that although it would not remedy the evil then, it would prevent a similar evil occurring in the future.  The fine generally imposed was so small, that persons in any kind of business, would sooner forfeit the penalty than attend.  He had frequently urged the necessity of extreme fines on the Court; and on his last complaint, Mr Justice Willis had stated that in future he would enforce the highest penalty.

The Court then ordered that the several parties who had been fined in the mitigated penalty, on calling over the pannel, should be severally fined £10, and that I should be notified that this cause would, in future, be in general operation.

The Attorney General then suggested, that as the pannel was so low, the sheriff's officer could call on the parties who lived in town, and compel their attendance, as it was more than probably that a jury would not be returned after the prisoners had exercised their right of challenge.

The prisoners Charles Kilmaister, Edwards Foley, James Oates, John Johnstone, William Hawkins, John Russell and James Parry, were put to the bar.

The Jury were then called to be sworn, and the following jurymen were challenged as they came to the book: -- William Jones, blacksmith; William Knight, publican, Sydney; Henry Linden, publican, Sydney; and William Johnstone, publican, Sydney, by the Crown; and Samuel King, shopkeeper, Sydney; N. L. Kentich, Sydney; Henry Lane, shopkeeper, Sydney; Edward Lord merchant; Joseph Luke, boatbuilder, North Shore; John Knox, cabinet-maker, Sydney; Andrew Liddle, Sydney; Edward Lee, merchant; William Love, landholder, Concord; Solomon Levien, hotelkeeper, Sydney; John Lamb, merchant; Saul Lyons, shopkeeper, Sydney; Richard Lynch, shopkeeper, Sydney; William Lee, shopkeeper, Sydney; James Kay, brewer; Parramatta; and William Longford, boatbuilder, Sydney, by the prisoners.

The pannel having been gone through, the four jurors challenged by the Crown were returned to the box, and the following jury were sworn to try the case:--

George Sewel, of Sydney, foreman; Francis King, soap boiler, Sydney; John Little, publican, Sydney; Richard Leeworthy, tailor, Sydney; Benjamin Lee, landholder, Parramatta; Edward Hyland, landholder, Richmond; Alexander Long, publican, Sydney; William Knight, publican, Sydney; and William Johnstone, blacksmith, Pitt Town.

On Mr. Henry Linden coming to the book, the Attorney General asked him whether he had not openly expressed an opinion on this case.  His Honor would not allow the question; it was not fair, neither was it constitutional.

Mr William Humphries was called by the sheriff as a talesman, and the Attorney General having ascertained that he had been on the jury on the former trial of the prisoners, said ``you may walk off," which expression the Court immediately checked, as casting an unnecessary reflection on a juryman.

The Registrar then charged the jury with the prisoners, and read through the indictment which contained twenty counts, as before stated, charging the prisoners with the murder of a black aboriginal child; the counts varying the person of the child, as a male, and a female child to the Attorney-General unknown, and as a black aboriginal named Charley.  The information charged the murder at having been committed by shooting with a pistol, cutting with a sword, and beating, casting into a fire, and keeping the child there until death ensued, to which the prisoners pleaded not guilty.

The Attorney-General opened the case.  They had (he said) already been put on their trial for murder, but for a totally different offence to the present charge; that point had already been decided by a jury of the country.  This case was a peculiar one and he was aware that considerable feeling and excitement had prevailed in the public mind on the subject; and on this head he might receive blame, for not having, at the close of the last trial, obtained an order from the court to prevent the publication of the trial before the matter was finally terminated, as well as the comments that appeared in some of the public prints.  That order, however, not being given, the trial appeared fully in the public prints and was commented on generally by every portion of the press according to their different opinions of the case.  He did, however, hope that the jury came into the box uninfluenced and unbiased by any feeling but that of a determination to strictly observe the oaths they had taken, and conscienciously [sic] perform that duty which the stern justice of the country, and the sacred obligation of their oaths demanded at their hands.  It could not be concealed, as it had already been disclosed in evidence, that twenty-eight human beings had lost their lives in a manner which was sufficient to move the most hardened and obdurate heart; it was not his intention, nor was it his wish to bias them against the prisoners, now put on their trial, but it was his duty as well as his custom to bring before them the enormity of crime, and to paint it in its most debasing colors.  The vengeance of the law only fell upon the guilty, and if the crime now imputed to the prisoners was not brought home to them by the clearest evidence, he did not expect a verdict at their hands, nor did the law expect it.  (The learned Attorney proceeded to state the circumstances of the case.)  There was one circumstance, which had come out since the former trial which would clearly implicate Kilmaister, and shew that he, at any rate, was actuated by malice, in the share he took in the matter; it was his having, when spoken to of the motives which could have induced him to commit such a deed, replied that if it was known what the blacks had threatened to do to him, he would not be blamed.  On the former trial eleven persons had been arraigned, and the jury would observe that seven only of the eleven, were now called to answer the present indictment and it would be competent for the prisoners to put those four persons into the box, to relieve them from the charges of which, having all been in company, they could not be ignorant; and, if they did not avail themselves of this, it would be presumptive proof of their guilt, as they might have called those who were present, to establish their innocence.  He could not avoid declaring that the thanks of the country were due to Mr Day, the police magistrate, for the vigilance he had exercised in tracing this barberous [sic] murder; and they were doubly due to him, as he had every obstacle thrown in his way by those who ought to have assisted him, and was strenuously opposed in the performance of his duty.  But notwithstanding the unworthy opposition he received, he had fearlessly performed that duty, and had, although not without great difficulty, collected proofs which he (the Attorney-General) thought, placed the matter beyond doubt.  As he before observed, there was no doubt but that great prejudice existed in the public mind, on this matter, but he trusted that the jury would cast all from their minds, and return a verdict on the evidence which would be laid before them, to satisfy their consciences, and the justice of the country.

The following witnesses were then called.

Mr Thomas Foster, superintendent to Dr. Newton, was called, and gave evidence precisely similar to that contained in the report published in The Australian of the 17th instant.

Mr William Hobbs, also gave similar evidence with one or two exceptions; and continued: I knew a little boy named Charley whose father was called Sandy, and they both were with the party of blacks I left at Myall Creek, when I proceeded to the Big River; he was a very familiar and a forward boy for his age; I know his mother who was called Martha, and they were all at my station when I left.  I saw the foot-marks of persons who appeared to have been engaged in rolling logs to the fire; they were not cut logs, but dry timber; I found a basket such as is used by the blacks, on the road between my station and the fire; it contained various articles such as are carried by the blacks; it contained a piece of opossum skin, some pipe clay, which they use for painting, some belts, and some small crystal stones which the blacks set great value on; I have been told they worship these stones, and consider they possess a charm to cure them when they are sick.

Cross examined by Mr Foster. - I know that depredations had been committed by the blacks some time before this, but further down the river; and I recollect Kilmaister saying that he thought it was a good gob that the blacks had come to the station, so that he could make friends with them; I did not say in my evidence, although I set it in the public prints, that Mr Foster stopped only a minute at the fire.  By saying that the bodies and sculls were in the same state when I went with Mr Foster, as they were, the evening before when I examined them alone; I did not mean with reference to the number of bodies, but to their state generally; I was close enough to see them; there was no fire, either on my first, or my second visit with Mr Foster; unless a person went close up and stirred about the ashes, he could not see the bones and sculls so well as I did; Mr Foster went closer to the  fire than I did on my second visit; I will not swear that he did not remain ten minutes at the fire; on my first visit, I examined them very minutely, and I judged from the sizes of the heads and sculls as to their being children or adults; I left from forty to fifty blacks at my station when I went to the Big River; I think there were more, but I may safely say from forty to fifty; I cannot swear that the forty or fifty I left are not living in any other part of the Colony, but I am quite sure they are not; I had a conversation with Mr Cormick at Mr Eaton's station relative to the murder; Parry was there, but I did not like to speak directly to him; Mr Cormick was begging me not to report it; I spoke to Parry of the matter about twenty minutes after, when Mr Cormick had left; he said he was sorry for it; I do not exactly know what Myall means, but I believe it is the name of some wood; I do not not [sic] know that the term Myall Black means a savage ferocious black.

By the Court. - It was distinctly to be seen that the remains were those of blacks; the flesh in many parts remained on the bodies.

By the Attorney General. - I believe those blacks belonged tot hat particular district; Davy's brother who was named Billy, and came to my station after the murder; I do not think from the general habits of the blacks, that they would be allowed to go into another district.

By the Court. - The basket of things I found were not likely to be left by them, of their own accord; I also saw several other baskets that had been left by them at their camp; they all contained the articles generally used and carried by the blacks; I have always understood they worshipped the crystal stones, and I have seen a great many with them; I have got some of those left myself; I also found a Scotch cap, which an old man named Joey wore; it was a good cap, and had been given to him by a white man; when they were at my place, I used to give what food I could spare, and they went out every morning hunting, and returned at night with opossums, and other food enough to keep them; I found no food at the camp.

Mr E. Day, Police Magistrate, at Muscle-Brook, gave nearly the same testimony as on the former trial, and added: I took Anderson under my protection, in consequence of the important information he had given me, and his being in an unprotected state.  In the course of the examination, or rather at the close of the examination, and just as Kilmaister was leaving the room, I said that I was more surprised at Kilmaister than at any of the others on account of his great intimacy with them, when he turned round and said, ``If you knew what they threatened to do to me, you would not be surprised."  I did not make any further remark at the time; I did not state this on my former examination, but when the Chief Justice was summing up, I recollected the circumstances, and told the Attorney General of it at the time.

The Court keeper was called on to produce the bones found at the fire which had been in his custody since the last trial.

George Anderson, assigned to Mr Dangar, and hutkeeper at the Myall Creek Station, and John Bates, an assigned servant to Mr Dight, of Richmond, were examined, and the former underwent a tedious and very strict cross-examination, but did not waver from the evidence he gave on the former trial.

Dr Robertson, colonial surgeon, examined the bones produced, and pronounced them to be human bones; the rib bones, apparently that of a boy six or seven years old; the teeth were also human, but although there was a great difference in the formation of the bones of white and black people, he could not undertake to swear that they were the bones of black persons.

Robert Sexton sworn (this witness was not examined on the former trial), I am assigned to Dr Newton, and was at the station in June last, when a party of horsemen came to the station; my master was not at home; they were all mounted, and I knew Johnstone, Hawkins, Russell, Oates, Kilmaister, and a man named Lamb, who I do not see before the Court; they asked John Bates if the blacks were there, and he said no; they remained a few minutes, and rode off, saying, they were going to Mr Hall's station, which is eight miles distant; this happened on the Saturday, and on Sunday Mr Foster came home and brought some blacks with him, but after they had stopped half an hour or an hour, they went away again; Mr Foster told them to go away, because the party were out looking for them; on the Monday morning following, the same party, with two others, came to the station; they gave me a black gin, and said I was to take care of her until some one called for her; the overseer (Mr Foster) would not let me keep her, and they took her away and went over to Mr Dight's station; Hawkins asked if the blacks were there, and when told no, he said it was a bad job they were not, and that they were driven away in order that they should not be caught; a few days after, when I went up to Mr Hobb's station, I told Kilmaister it was a bad job about the blacks, and he said yes, but he was all right.

Charles Reid, a ticket-of-leave man, gave evidence to the  same purport as on the former trial, and added; I saw the place where the murder was alleged to have been committed, and saw bodies and heads lying about, but I walked away as quick as I could; Kilmaister appeared very angry when I spoke to him about it; the blacks are generally treacherous, but this tribe was particularly peaceable, and had been about Mr Wiseman's and Mr McIntyre's stations for some time.

By the Court. - This tribe was backwards and forwards from one station to another, and they had the name of being always in the district and very peaceable; a month or two before this happened, I saw them at Mr McIntyre's station.

The Attorney General proposed to call Mr Hobbs to speak as to Anderson's character, which had been impeached by the Counsel for the defence; but His Honor said it would be open for the Attorney General to do so at a future stage of the proceedings.

Mr Foster re-called by the Court. - It had rained about the time of the murder; I think it rained on the Saturday I reached Mr Dangar's station, but I don't think we had any rain on the Sunday.

Mr Hobbs re-called by the Court. - I believe that tribe of blacks to have been about Mr McIntyre's station seven or eight months; it must have been known that I was going to the Big River, ten or twelve days before I started, because I was collecting the cattle for that purpose, and I said that as soon as I could get one herd in, I should go.

This was the case for the prosecution.

Mr a'Becket contended that there was no evidence of the murder of Charley, to which the jury must confine themselves, nor was there any thing amounting to probability to put to the jury; for although he did not pretend to deny that circumstantial evidence was sufficient to establish case, as it was not always possible to get direct evidence; yet there must be some probability in the circumstances, which should be connected, and corroborated by the different facts.  In this case the evidence was so loose and vague, as regarded the murder of Charley, (and that was the offence charged against the prisoners,) that it could not be put to the jury.  The first point to be determined, was whether Charley had been killed, and what evidence was there that he was not now alive.  It was distinctly laid down by Lord Hale, that no conviction should take place, unless the body was found, or on the testimony of an eye witness to the commission of the crime; and a very remarkable case was reported in the books, which proved the extreme caution necessary in determining a case of murder.  A sailor was heard to say that he would kill his captain, and asked one of his brother seamen to assist him, which he refused to do; in the night, the sailor who had been asked to assist, heard a noise, and on going on deck, he saw the other sailor throw the captain overboard, but at the same time there was a billet of wood lying on the spot where the captain was, and the deck and the sailor's clothes were covered with blood.  The man was convicted upon this evidence, and executed, although the body was not found.  But here there was a conclusive hypothesis; the jury were satisfied that the captain had been murdered before the body was thrown overboard, otherwise the authorities quoted would have entitled him to an acquittal; but that case was not like the case quoted on the trial, which was that of a child, which was thrown into the sea by its parents, and because it might have been drifted by the flow of the tide, and have been picked up, or otherwise saved, the parents were acquitted; and he (Mr a'B.) contended that the present was a much stronger case than that, where the alleged murdered person was a savage roving amongst his native hills and dales, and who might not be seen by any human being except his own tribe for years.  He contended that proof of the corpus delicti was essential; it could not be disregarded; it was the very substance and essence of the offence, and without such proof (and none had been given in the present case) there could not be a case for the jury.  If the jury had any doubt of the murder of Charley, except that of the man Anderson, who, although he saw him at the hut, did not see him go away with the party.  He would quote another equally strong case, which showed the great caution which ought to be exercised before a conviction for murder took place, and in which the law was clearly laid down by Lord Hale, that no conviction should take place unless on view of the body, or the evidence of an eye witness of the fact.  It was the case of a child, who was heard to say ``good uncle, don't kill me;" the child was directly after missing, and the uncle was called on to produce the child by a certain day.  In terror he procured a child of the same age, and greatly resembling the child missing; but the imposture being detected, he was put on his trial, convicted, and executed.  Some time after, when the child became of age, it appeared to claim some lands, and it then appeared that on account of harsh treatment, the child had absconded.  Upon all these authorities, he though the Court would pause before putting to the jury a case (which was much less supported than those he had quoted,) upon the principle that the mere abstract fact of the coincidence of an hypothesis could be arrived at.  Now, in this case, he contended that not one only, but many reasonable hypotheses could be arrived at.  He would put one case - This tribe might have gone, as was stated, in company with the whites; had been met and attacked by another body of blacks, and left in the way described; and were these men, merely because they happened to be in their company some time before, to be put on their trial for murder?  However, many other and stronger cases might be put, but he contended that as this was a case dependent merely on vague circumstantial evidence, if any other case could be suggested, it must altogether fail.

Messrs Foster and Windeyer followed on the same side and exercised great ingenuity in argument.

His Honor said that he was of opinion that there was a case to go to the jury, but he should exercise great caution in putting it to them, and should pay due attention to the  argument of counsel.

Mr Henry Dangar was then called for the defence.  He gave Kilmaister an excellent character, and stated that he would not believe Anderson on his oath, on account of his being greatly addicted to telling lies, and on account of his general bad character.

Cross examined by the Attorney General - I never saw Anderson take an oath, and I would not believe him on account of his bad character; he was under my immediate superintendance [sic]; he was a shepherd and had religious instruction, at least, I had prayers every sabbath day at my house; he was a shepherd; he was at prayers every sabbath when I was there; I had occasion to take him to court; I made two charges against him - one for absence from his station, and another for not removing his hurdles; he got fifty lashes for each offence; they both occurred at the same time; he could not move his hurdle when he was absent; he was at court once before, but I forget the circumstances; I don't mean to say that I would not believe a man on his oath because he neglected his business; he was two years at Patrick's Plains and I was about three miles from the bench of magistrates; Mr Hobbs said he was a cleanly man, but he could make no hand of him as a shepherd; I received a letter from Mr Hobbs a few weeks after the murder happened; by the time I had received Hobb's letter, I heard that Mr Day had received orders to proceed and enquire into it; I did not discredit Mr Hobb's statement that the blacks had been killed; sometimes letters are six or seven weeks getting down;  I might have been three or four weeks after the murder I received Hobb's letter; I asked Mr Day to recommend me in the proper quarter, that I should get a substitute for Anderson; if he had remained in my employ, I should have had to send him to a distant station, and I was fearful to do so; I was at the station after Mr Day was there; I did not believe Anderson's story; Mr Hobbs told me that he had seen twenty-eight bodies there; I did not altogether credit that there were so many, because Mr Foster's story was different, and he did not see so many; I enquired particularly of Mr Hobbs if the bodies were in the same state and numbers, as they were when he had seen them; I don't recollect him stating numbers, but he said in all other respects; another complaint against Anderson was about a cart; I did not see that myself but depended on the evidence of an overseer, named Ross, and I did not make the complaint against him; I was suspended from a public office, and I heard no more about it.

The Attorney General. - Were you not dismissed from your situation?:

Mr Dangar. - I was suspended.

The Attorney General. - Were you not dismissed.  I say sir?  you know what I mean.

Mr Dangar. - I was suspended.

The Attorney General. - Answer me without equivocation, sir!  Were you not dismissed, and not suspended, as you want us to believe?

Mr Dangar addressed the Court, to know whether he was bound to answer that question.

Mr Justice Burton replied that he was bound to answer the question.

Mr Dangar (in continuation). - I was a surveyor; I did not ask to be reinstated; perhaps the Secretary of State might have given orders that I was not to be reinstated; perhaps I received a public intimation; it is ten or twelve years ago, and I don't recollect the contents of a letter of so remote a date; I was suspended.

His Honor Mr Burton - Mr Dangar, if you were not dismissed, you can have no hesitation in stating so without equivocation.

Mr Dangar - A suspension was tantamount to a dismissal.  The Governor ordered my suspension, and perhaps the Secretary of State might have ordered that I was not to be reinstated; I would dismiss one of my servants for shooting a black man; on my oath I would; Mr Hobbs is not to remain in my service; his time is expired.

Mr Justice Burton - When an answer is given to a question, it is to be fully given without reservation.  Was that the only reason of his leaving your service.

Mr Dangar - No your Honor, and I was going to add, he has not given me satisfaction in the case of my property; that is the only cause; I never did express any dissatisfaction at Mr Hobb's conduct in this case; I expressed my dissatisfaction at his keeping me in town the other day; I never told him nor any one else that I was dissatisfied at his bringing this case forward; if this case had not happened, I would have discharged him; I had an intention, six months ago, of putting an end to his agreement, but I did not state so to him; he has been with me two years; I believe his term expired in October, and I gave him notice in October; I don't know to 500 head of cattle, how many I possess; I made up my mind six months ago to discharge him; I communicated that determination to my own family, but not to him; when I was going up to my station the last time, I stated to Mr Day that I was well pleased with Mr Hobbs; that was in September, a month before I gave him notice that I would terminate his agreement; I did not tell Mr Day that Mr Hobbs was a man of truth; I said that Mr Hobbs was a respectable young man, and I was very glad Mr Day had found my station so regular; when Mr Hobbs agreed for a year, it was not imperative on me to give him notice; if he had asked me, I should have told him; I did not come in contact with him in the second year as I did the first when I renewed his agreement; I was about the Court this morning; some person told me he was arrested, but I did not know that he was to be arrested; I did not know that there was a scarcity of jurymen, and I swear I did not speak to any one, advising him to come here to get on the jury; I did not ask any one why he did not sit on the jury; I did not say to any one ``why did you not sit on the jury, and why did you refuse;" I swear I did not use these words before Mr Fisher, the Crown Solicitor, and Mr Justice Willis; I do not defray the expense of the defendants; I subscribed £5 in the month of July or August to defend my servant, who is a faithful one; it was simply because Kilmaister was my servant that I subscribed; I won't swear that I would not have subscribed if he had not been my servant; I subscribed before I heard the particulars of this matter; I gave Mr Hobbs notice two or three days after I got up to my station, or may be the next day; I spoke to Mr Ferris to-day; I said to him, ``you have made haste back from the Hunter;" I saw him going off by the steamboat, and I was surprised at seeing him back so soon.

By Mr Foster - I considered it my duty to see my servant defended; I was suspended for purchasing a piece of ground from a grantee, sooner than the government regulations admitted; it was a common practice at that time; my Surveyor General did the same; there was another reason assigned for my suspension, which was the misappropriation of land; that was not true, and was set right by the Surveyor General at the time.  That is the great moral offence I committed; the reason why I would not believe Anderson on his oath, is his general habit of lying.

By the Court. - Mr William Dunn was the grantee of whom I spoke; the land was selected at Invermein - 800 acres; this was an additional grant for meritorious services; I bought the order for appropriation, before it was granted to him; I selected the land with his concurrence, he did not select it himself; I gave him five shillings an acre for it; the misappropriation charged against me was not that, but in measuring some land for my brother; Mr McIntyre did make a complaint against me; the man, Finney, who was tried for the murder of Mr McIntyre, was an assigned servant to my brother; it was at the Namoi River, in the same direction as the Big River.

Mr T. S. Hall was called and gave Oates a character.

Mr William Hobbs recalled. - I have been superintendant [sic] to Mr Dangar at the Big River; Anderson was under my immediate controul all the time I was there, except a few weeks when he was punished; I had no reason to doubt his oath; from his general character I should believe him on his oath; he was as good a servant as ever I met, and as good as Kilmaister in his station.

The case closed here.

Counsel on either side argued at some length on objection in law, which, as the points are to come on for the solemn decision of the three judges, when they will be fully argued, we have not given.

His Honor said that he would make a note of the objections, and reserve them for the decision of the full Court.

At eleven o'clock His Honor commenced summing up.  Before he went into the particular facts that had come before the Court in evidence, he wished to impress on the jury the situation that they and himself were placed in, and he thought that by imparting to them what was passing in his own mind, there might be found a consonance of feeling on the subject.  There was no doubt but a great crime had been committed, and the prisoners were charged with having committed it.  They had been told that opinions had been formed, and inferences drawn from what had appeared in print, but the jury were, in the solemn situation in which they were then placed, between God, their country, and the prisoners, separated from the community; and they, as well as himself, were bound to hold themselves responsible to God and their country, and not to public opinion.  The very form of the indictment, which stated the crime to be against the peace of God and the Queen, shewed that they were equally under the protection of God and the law, and the tribunal before which should be supported by solemnity, and its operations conducted with a rigid regard to the laws of God, and the laws of the country.  He knew how pleasant it was to have the good will of friends, and of the public, but in the consciencious [sic] discharge of the duty now imposed on them by the solemn oath they had taken to administer justice, they must discard all private feeling, and guard against the semblance of being biased by any consideration.  There might have been persons who had endeavoured to influence the public mind on either side of the case; they were not however to be moved by the opinions of either party, but to do their duty to God and their country, as they were sworn to do so.  Seven persons were charged with he murder of a human creature, and the circumstances of the case presented a fearful barbarity which perhaps had rarely been equalled; several persons had been tied together and shot, and cut and burned, in the most barbarous manner, and for one of these murders, the prisoners now called to answer.  The information contained twenty counts, varying the offence which had been considered necessary by the crown officers, and a good deal of solid argument had been addressed to him, from which he was strongly inclined to think that it was one and the same offence.  The offence here was confined to the murder of children and the impression upon his mind then was, that the prosecutor should be restricted to evidence of the murder of Charley, on the principal that a party should not be put on his trial for two offences at the same time; and he should take on himself t direct them that in the first instance they must apply their minds to the conclusion that Charley alone; if they arrived at the conclusion that Charley had been killed and that the prisoners were the parties implicated in the murder, they would find on the last five counts, and they would be relieved from the consideration of the other counts but if they did not find that fact, then they would apply their minds to the other counts which charged the murder of a black child unknown, and he would reserve the point taken by Counsel for the decision of the full Court, so that the prisoners might have the benefit of their solemn decision.  Before he read through his notes in full, which he should feel it his duty to do, he would select such parts of the evidence which appeared to him to bear particularly on the case (His Honor then made lengthy extracts from the evidence, contrasting the various corroborative circumstances).  With respect to the evidence of the man Anderson, it had been impeached strongly by Mr Dangar, who from some frivolous cause had stated that he would not beleive [sic] him on his oath; but if it were allowed that men charged with some trifling disobedience of orders or neglect, were to be incapacitated from giving evidence, he was fearful that many crimes, and murders amongst the number, would go unpunished.  However, they had heard Mr Hobb's character of Anderson, and they had also heard Mr Dangar's reason for impeaching the credit of Anderson; they had heard circumstances relative to the misappropriation of land, and they had seen the manner in which Mr Dangar had conducted himself in the box, and it was for them to judge whether Anderson's testimony had been impeached, or whether Mr Dangar's testimony had not rather been impeached by himself.  At all events, Mr Dangar had shewed the bias of his mind; he had shewn that his opinion had already been formed, and that he came before the Court prejudiced.  In this case, it was clear that a human creature had been slain, and he hoped he need not impress on their minds that it mattered not, in the sight of God or of the the [sic] law, whether that creature had a white or a black skin; they were equally liable to the protection of the law, and he could not help noticing (and he had waded through the evidence to find it if possible), that in this case there had not been the shadow of provocation given by the unfortunate blacks.  If the pecuniary interests of gentlemen required that their servants should go armed, it ought to be impressed upon them that nothing but extreme necessity would warrant their using those arms against their fellow-creatures; and if the community ever became so depraved, that lives of human creatures of so little value, that it was to be supposed that the blacks night be indiscriminately killed, wherever they were seen, then, he said, that it was no wonder that the Colony should be visited by the displeasure, and heavy visitations of God.  If outrages had been committed by other blacks down the river, this tribe had been represented as peaceable; they were in constant contact with the whites, and were peaceably encamped for the night, when they were led away to slaughter.

His Honor read through the whole of his notes, and left the case with the Jury, upon his former exposition of the law.

The Jury retired at a quarter past one o'clock, and returned into Court at two o'clock, when the foreman delivered a verdict of Not Guilty severally as the names were called by the clerk.

A Juror stated to the Court that the foreman had made a mistake, and had not delivered the verdict of the Jury, which was Guilty on the first five counts - Not Guilty on the other fifteen counts.

This verdict was recorded, and the prisoners were remanded.

The Court adjourned at two o'clock, until twelve o'clock on Friday.

 

Dowling C.J., Burton and Willis JJ, 5 December 1838

Source: Australian, 6 December 1838[ 4]

 

WEDNESDAY - The three Judges took their seats.

On the Judges taking their seats, Kilmaister and the other prisoners convicted of murder, were put to the bar.

The Attorney General prayed the judgment of the Court thereon.

Mr a'Beckett rose and stated that he believed he was called on to move in arrest of judgment; and as he was not in Court at the time the objections were reserved, begged that His Honor Mr Justice Burton would state what the real objections reserved for the decision of the Court were.

His Honor said that the objection taken was, that the prisoners having been acquitted on one set of counts, for the murder of Charley, they were improperly convicted on the other counts for the murder of a black unknown.

Mr a'Beckett said that he would confine himself to that point, but he conceived that he could take other objections to the record afterwards.

Mr Justice Burton said, that he could take objections to the record, but he must confine himself entirely to the points connected with the record.  His Honor added that he had fully explained to his brother Judges, the nature of the objections taken on the trial, which he had reserved.

The Chief Justice said that he was of opinion that it was too late now to moot that point, as the question had, in point of fact, been put to a jury who had determined it by their verdict, which could not now be questioned.

Mr a'Beckett contended that if the verdict of a Jury was clearly contrary to the evidence, it was open for counsel to go into that point in motion for arrest of judgment.

His Honor Mr Justice Burton said that there was nothing in point, either of law or conscience, which would justify a reversal of the verdict, even if it was competent to do so; he would, however, take opportunity of further advising with his brother Judges on the circumstances of the trial, on which he had been in some doubt, for he conceived it to be a most important duty for a Judge, after endeavouring not to err, to correct error when it was discovered.  It would be attended with very injurious consequences, if the solemn verdict of a Jury was allowed to be impeached, after that verdict had been determined on the full development [sic] of the facts, and the statement of the law by the Judge.

Mr a'Beckett wished to know if he was expected to confine himself to the point as explained by His Honor Mr Justice Burton.

Mr Justice Burton said that the point to which Mr a'Beckett would confine himself was, the murder of two distinct individuals, at the same time, being charged in the same indictment, and the prisoners being acquitted on one, whether they could be convicted of the other.

Mr a'Beckett said that he had no doubt but that two or more felonies could be charged in the same indictment, and if he was confined to that point he would not take up the time of the Court.

After a lengthy argument, in which Mr a'Beckett tried to open the objection on the demurrer, in which he was stopped by the Court, as that point had already been argued and decided by the Court, proclamation was ordered to be made, and His Honor Mr Justice Burton having put on the black cap, addressed the prisoners:--

The prisoners had been found guilty on an information charging them with murder, a point had been reserved for the consideration of the full Court, and although the mind of the Judge did vary on that point, they had now had the benefit of its being argued by Counsel and decided by the Judges.  The Law of the Land was that whosoever was guilty of murder should suffer death, and this was not a mere law of human convenience or human direction which was adopted, and could be rejected at pleasure, but the law of God, delivered by him when there were few human beings on the face of the earth, and was not addressed to a few but to all nations.  The law given was imperative, and could not be altered.  ``Whoso sheddeth man's blood, by man shall his blood be shed."  He, (Mr Justice Burton) doubted whether it was possible for any human legislature to vary from this law given by God himself to the children of men, nor was it just that it should be altered.  The circumstances of this murder were marked with singular atrocity, and he was persuaded that the prisoners, long ago, must have anticipated such a result to their trial.  It was not a case of the murder of a single individual - it was not a case of death ensuing from violence committed in a drunken quarrel, many of which had been been [sic] tried this Sessions, when it appeared that blood had flowed, and intermixed with the damning liquor.  This was not a case where any provocation had been given, which might have been pleaded in excuse for the deed - this was not a case where the property or lives of individuals had been attacked, and force had been resorted to, to repel the attack - the murder was not confined to one man, but extended to many, including men, women, children, and babies hanging at their mothers breasts, in number not less than thirty human souls, slaughtered in cool blood.  This massacre was committed upon a poor defenceless tribe of blacks, dragged away from their fires at which they were seated, resting secure in the protection of one of the prisoners; unsuspecting harm, they were surrounded by a body of horsemen, twelve or thirteen in number, from whom they fled to the hut, which proved the mesh of destruction.  In that hut, the prisoners, unmoved by the tears, groans, and sighs, bound them with cords, fathers, mothers, and children, indiscriminately, and carried them away to a short distance, when the scene of slaughter commenced, and stopped not, until all were extirminated [sic], with the exception of one woman.  His Honor did not mention these circumstances to add to the agony of that moment, but to pourtray [sic] to those standing around the horrors which attended this merciless proceeding, in order, if possible, to avert similar consequences hereafter.  He could not hope to reach, but he hoped that others would reach, that the grace of God would reach the hearts of men who could, without remorse, sacrifice fathers, mothers, and infants, in one swoop, without any cause for excitement.  It appeared that extraordinary pains had been taken y the prisoners, or by some persons deeply interested in the concealment of their crime, to prevent the murder from coming to light; but it had pleased Almighty God to conduct a person to that heap of human remains, to be a witness of the scene, before the heap was taken away bit by bit, as it evidently had been, to remove every vestage [sic] of the murder.  The crime was, however, committed in the sight of God, and the blood of the victims cried for vengeance: the carrion was so far exposed as to invite flocks of birds of prey, and the traveller would naturally leave his path, and go to see if his ox or his ass had fallen there; moreover, it pleased God to cause rain to fall, as it were to raise up evidence of this deed; the tracks of the horsemen who led the blacks, and those of the naked feet of the blacks, were visible from Mr Dangar's huts, from whence they were taken, to the spot where the bodies were found; and it was observed that no marks of naked feet were seen leading from the scene of slaughter, which corroborated the confession made by one of them to the witness, whose evidence was also thus supported, that not one of them escaped, except the woman who was saved: no, not one.  The crime was conceived, and not suddenly executed whilst imaginative injuries acted on his mind.  It was premiditated [sic], and cooly [sic] planned, as appeared by their being seen some time before it was perpetrated, at a station further down the river preparing straps, and burnishing their swords; they had called the Saturday previous at Newton's station, avowedly seeking the blacks, and on the Sunday evening they came on them, thus closing a hallowed day by the perpetration of murder, thus doubly offending their God, by selecting His holy day for the commission of this unheard of barbarity.  He (Mr Justice Burton) could not conceive that they could have so far forgotten all Christian feeling, if they had not flattered themselves that there were many who would exert themselves to conceal their crime, and that they would be protected by them - if they had not flattered themselves that none would be found to bring it to light.  But for the sake of those who stood round, he wished to clearly explain what the law of the country was, and what the judges would do when called on to perform their duty.  The law and the judges went hand in hand, and in no case in which the life of a human being was taken, whether black or white, would the judges scruple to carry the law into effect.  In doing his duty as a judge, he could not avoid expressing his feelings as a man, and he did seriously hope that they were instigated solely by their own feelings in the commission of this crime - he sincerely hoped they had not been led on to the commission of it by the instigation of others; if that was the case, he hoped the parties would be brought to light, and called to answer for the part they had taken.  He believed that all the prisoners had originally been transported and sent to a station, 150 miles away from any religious instruction - to where the ordinances of religion were never observed, if they were even thought of -- and where they could give way to their uncontrolled feelings.  He greatly deplored this; but he could not suffer his feelings to interfere with his public duty, and that duty forced him now to pass the sentence of the law on them.

His Honor passed the sentence of Death on the prisoners, who were removed from the bar.

 

Dowling C.J., Burton and Willis JJ, 5 December 1838

Source: Sydney Gazette, 6 December 1838[ 5]

 

Before the Judge - In Banco.

The prisoners convicted of the murder of the Blacks at Liverpool Plains were called upon to shew cause why sentence of death should not be passed upon them.

Judge Burton said that the point reserved for the consideration of the Court was, whether the prisoners could be tried for separate murders on the same indictment.

Mr. a'Beckett would confine himself to that point, but he submitted to His Honor that he might take any objections to the state of proceedings at present.

His Honor said that the learned gentleman might take any objections which appeared on the face of the record only.

The learned gentleman proceeded to take the same objections as on the former occasion, when the point was argued before a jury.  His Honor observed he had not reserved that point for his brother judges, but he would communicate it to them now.  His Honor having done so, said he had truly stated the point to his brother judges, and it was for them to state whether any objection could be made.

The Chief Justice gave it as his opinion that this could not be allowed, it would amount to an application for a new trial, and would very much shake the verdict of a jury who returned that verdict after a mature consideration of the whole of the evidence.  Mr. a'Beckett quoted a case to shew the power of the Court to reprieve before judgment, and lay the case before the King.  Mr. Justice Willis said, that if the Court were of opinion that it was at all necessary they would always hear counsel's arguments.

Mr. Justice Burton again stated that he had not reserved this point for the consideration of his brother judges, but he had already communiated [sic] it, and if necessary he would again advise with them; the second duty of man was, after trying to avoid error, to correct any previous error; but were the present application allowed it would shew too much laxity.  The Court decided the case and the jury the fact, and that decision of a point put to the jury was unexceptionable.

Mr. a'Beckett was anxious to know what the point was confined to; it was not argued that there were two separate murders.  His Honor stated that he should confine the evidence to Charley, and thus the prisoners now were convicted of one crime, while they had been defending themselves against another charge.

His Honor Judge Burton stated the manner in which he had put the case to the Jury.  The prisoners were at liberty to call any evidence in their defence when the prosecutor's case was concluded, but they did not even propose any more than that which was heard.

Mr. a'Beckett said they had not given evidence because they thought the case confined to Charley alone, or they might have proved that the parties said to be unknown were in fact known, and the prosecutor was not put to his election.

Mr. Justice Burton said he had before stated his opinion that the objection as to ``election" was not tenable.

Mr. a'Beckett urged that the prisoners were virtually put to their election, and confined their defence to the case of Charley.

Judge Burton said the only point for the consideration of the Court was whether the prisoners were properly convicted having been acquitted of one charge and found guilty on another in the same indictment.

Mr. Justice Willis read the law of the case, and observed that this was one transaction, and the law being thus laid down would save time.

Mr. a'Beckett said that in that case the prisoners might be tried 100 times for as many persons unknown, and not in any one case have the benefit of an ``autrefois acquit."

Mr. Justice Willis said that if the prisoners had been tried for the murder of one black and acquitted, and afterwards tried for the whole number said to have been killed, they would of course be again acquitted, as no man can be tried twice for the same offence.

Mr. a'Beckett said he was now shut out from an objection which he should have made at the trial if he had thought the evidence was to be applied generally.

Mr. Justice Burton said that the counsel for the prisoners took each their turn to address the Jury on this point.

His Honor the Chief Justice said that the consideration of the Court must be confined to the point reserved.

Mr. a'Beckett gave up this point, but submitted that the indictment was not sufficient to go to the Jury.

His Honor the Chief Justice said the prisoners had already had the full benefit of that objection.  It had been solemnly discussed and decided.

His Honor Judge Burton having ordered silence to be observed proceeded to pronounce sentence: -- Prisoners at the bar, you have been found guilty of the crime of murder by a jury of your countrymen.  A point was reserved for consideration in your favor; by abandoning that point your counsel have confirmed the impressions which already existed in the minds of the Court.  You have all been sent to this colony for some crime committed at home; you have all lost your liberty for some cause or other, though some of you have since regained that liberty by service; you are well acquainted with the law which says, that whoever is guilty of murder shall suffer death.  This law is no conventional law, no common rule of life formed for human purposes; it is founded on the law of God, which was laid down of old - ``Whoso sheddeth man's blood, by man shall his blood be shed." - No human legislature could dare to depart from a law originating in the Deity, which has existed in its full force since the days of Adam.  The atrocious circumstances attending the crime of which you have been found guilty, must have convinced you long ere this of the result which must soon follow the conviction.  This is not a case of that description which has so indelibly stained the annals of this colony; there was here no drunken brawl, when the blood of the murderer and the exciting poison mingled together on the ground.  There was here no provocation; no cause for anger.  Men, women, children, even babes hanging at their mothers' breasts, not less than 30 altogether of these unfortunate defenceless blacks, who were quietly reposing by their evening fire, believing themselves safe in the friendship of one of you, were suddenly surrounded by a party of horsemen, and when shewing their full reliance on the former professions of that man they rushing to his hut for protection, in blind hope for safety into the net which had been prepared for them.  In the midst of their cries and groans, and sighs and tears, they are bound by a cord and led to slaughter.  These remarks are not made to add to the pain which you must now experience, they are made for the benefit of standers by.  I sincerely hope that the grace of God may reach and penetrate the hardened hearts that could surround a funeral pile lighted by themselves, and gloat on the tortures and sufferings of so many of their fellow beings.  Great pains had been taken by you, or by some one deeply interested in the concealment of your crimes, to remove every vestage [sic] which might tend to clear up the mystery of their fate.  But Heaven was cognizant of the crime, and sent its attesting witnesses.  The day before the murder was committed a shower of rain falls, and the ground so softened received the tracks made by you on your road to the scene of slaughter.  The birds of prey darkened the clouds over the spot, and who would not be attracted by such a sight; a man would seek whether it were an ox or an ass that thus enticed the ravenous hordes.  From Dr. Newton's to Mr. Dangar's, and from Mr. Dangar's to the fatal spot were found your guilty tracks, thus affording the strongest corroboration to the evidence against you.  This crime, again, has not been committed without the greatest consideration and premeditation; all the plans were carefully laid; days before you were seen, some 8 or 9 of you, at some distance from Mr. Dangar's preparing yourslves [sic] for the guilty consummation of your purpose.  On the Saturday you went to Dr. Newton's; what was your errand? seeking out the unfortunate blacks; and on the Sabbath, that day which should be hallowed by all, you perform this incomparable act of cruelty as if to make the deed doubly atrocious.  You know the English laws, and there must have been some moving cause, some hidden hope that your crime would be concealed by parties interested that urged you on.  You have flattered yourselves vainly; and I hope that if there be any parties who were interested in its concealment, they will be discovered, for the law holds the life of the black as dear as that of the white.  In doing my duty as a judge, I have my feelings as a man, and I do, in sincerely commisserating [sic] your unfortunate state, hope that no other motive than that set forth in the information has induced you to the crime.  I do trust that it was the ``being seduced by the devil, and not having the fear of God before your eyes" alone that urged you on, and that you have not been induced by the persuasions of others; for, if it be so, it will be brought to light, and they will receive their meed of punishment.  At the distance you were placed, 15 miles from any police station, any interference or protection by law was rendered unavailable to you, and perhaps it was a great misfortune for you to be so placed.  Whatever private feelings may exist, I must not allow them to interfere with the stern duty imposed upon me by law - and that is to award the sentence due to your crime, which is - that each and every of you be taken from this place to whence you came, and from there to a place of public execution to be hanged by the neck until you are dead, and may God have mercy on your souls.[ 6]

(Time will not admit of our giving more than the foregoing brief outline of Judge Burton's speech on passing sentence, during the delivery of which the judge was deeply affected - to tears.  His Honor was listened to with the deepest attention by a crowded court; and we trust that the remarks which fell from the Bench will have the effect they were intended to produce on the audience - of showing them that the black man, like the white man, has a soul to be saved, and that any outrage on the former by the latter, will be as soon avenged, as would be an outrage on the white man by the black savage.)

 

Notes

[ 1]See also Sydney Herald, 28 November 1838; Sydney Gazette, 29 November 1838; and for proceedings between the two trials, see Australian, 20 November 1838.  For an indication of the passionate response to the outcome of this trial, see R. v. Douglass, 1838.

This case was also recorded in Burton, Notes of Criminal Cases, vol. 39, State Records of New South Wales, 2/2439, pp 28-107.  It concludes with the following: ``Verdict - all Guilty on the first five Counts.  Not guilty on the others."

The first trial is reported as R. v. Kilmeister (No. 1), 1838.

Justice Burton had a sincere, albeit paternalist, interest in Aboriginal welfare, as is shown in Miscellaneous Correspondence Relating to Aborigines, State Records of New South Wales, 5/1161, 378-493, 515-517, 772-780, 789-796.  At 385f, there is a draft bill which appears to have been written by him, the preamble of which states: ``Whereas it is expedient and necessary to make provision for the amelioration and protection of the Aboriginal Natives of this Colony in such manner as shall be consistent with their just rights and privileges as Subjects of Her Majesty the Queen".  At 797-802, there is an application by the Aborigines Protection Society for the admission of native evidence. (Some of these documents are now online, see numbers 27, 27a, 27b, 87.)

[ 2]See also Australian, 29 November 1838; Sydney Herald, 28 November 1838.

[ 3]See also Sydney Gazette, 1 December 1838; Sydney Herald, 3 December 1838.  The Sydney Gazette gave the longest account of the evidence and of the speeches of the Attorney General, but the Australian gave a much better summary of the judge's summing up.  The Herald, which had acted disgracefully in attempting to influence the juries to acquit, gave only a very short account of the actual trial.

[ 4]See also Sydney Herald, 7 December 1838; and see commentary in Australian, 6 December 1838. This was also recorded in Burton, Notes of Criminal Cases, vol. 39, State Records of New South Wales, 2/2439, p. 113, simply stating that the point of law was disallowed, and the sentences of death passed.

[ 5]Both the Gazette and Australian versions of this day's proceedings are included here because of their different emphases.

The plans for retrying the other Myall Creek defendants came to nothing. The Sydney Herald, 7 December 1838, reported that ``John Blake, James Lamb, George Palliser, and Charles Toulouse having been placed at the bar, the Attorney General moved that their trials be postponed until next session.  The affidavit of Mr. William Hobbs stated that a black boy, named Davy, told him that he stood behind a tree and saw the prisoners and others murder the blacks - that Davy is nineteen years of age, can speak English, and, in the opinion of Mr. Hobbs, might be sufficiently instructed so as to become a competent witness.  The affidavit of the Crown Solicitor stated that it appeared by the depositions that Davy was a necessary and material witness for the prosecution.  The learned Attorney-General alluded to several cases in which this course had been pursued.  Postponement of trial ordered."  See also Australian, 6 December 1838; Sydney Gazette, 6 December 1838.  The Sydney Gazette noted that Davey would be instructed in the nature of an oath in the meantime.  According to Roger Millis (Waterloo Creek: The Australia Day Massacre of 1838, George Gipps and the British Conquest of New South Wales, McPhee Gribble, Ringwood, 606-608), the supposed failure of the attempts to instruct Davey were used as an excuse to drop the prosecutions against these four.  The public hostility to the execution of the seven Myall Creek murderers had pressured the government to let the others free. See R. v. Lamb, Toulouse and Palliser, 1839.

Despite the widely held belief to the contrary, these were not the first Europeans hanged for the murder of Aborigines. See R. v. Kirby, 1820.

[ 6]Governor Gipps reported this to Lord Glenelg on 19 and 20 December 1838: Historical Records of Australia, Series 1, Vol. 19, 700f, and 705f.  In the latter, Gipps told him that he had omitted Robert Scott from the magistracy as a result of his advocacy of the murderers' cause.  On 8 January 1839, Gipps told Glenelg that the gaoler, Mr Keck, had reported that all of the hanged men had confessed their guilt: p. 739. For the British government's views of the clashes between Europeans and the Aborigines, see Glenelg to Gipps, 21 December 1838, at p. 706.

Published by the Division of Law, Macquarie University