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

R. v. Long Jack [1838] NSWSupC 44

Aboriginal defendant - Maitland - murder - Aborigines, killing of - drunkenness, defence of - domestic violence, among Aborigines - Burton J., attitude to Aborigines - evidence, interpreter - Aboriginal evidence

Supreme Court of New South Wales

Burton J., 2 May 1838

Source: Sydney Herald, 7 May, 1838[ 1]

Wednesday. - Before Mr. Justice Burton and a Military Jury.

Long Jack, an aboriginal native, was indicted for the wilful murder of his wife Mary, at Maitland, on the 25th February, by beating her with a waddy.

A long conversation took place  between the Judge, the Rev. Mr. Threlkeld, M'Gill the black native, the prisoner, and the Attorney General, the result of which was, that His Honor considered the case had better go on without the intervention of an interpreter, as he thought the prisoner had a sufficient knowledge of English to understand the case.  At the request of His Honor, Mr. a'Becket undertook the prisoner's defence.

When the indictment was read over and explained to the prisoner, and he was called on to plead guilty or not guilty, he said yes, meaning that he did kill the woman, but His Honor directed a plea of not guilty to be entered.

The facts are very simple.  The prisoner and several other blacks were very drunk and quarrelling; a person who was standing by, saw the woman Mary running from the black camp towards a house for shelter, followed by her husband; the door of the house was shut in her face, and the prisoner overtook her and laid hold of her by the wrist, and after a few moments parlance struck her several blows with a waddy on the head, which killed her.  The prisoner was taken into custody, and the next morning when told he had killed his wife, at first said it was "gammon," but when convinced she was dead, cried very much, and said he was drunk and could not help it.  When called on for his defence, the prisoner merely said, "I was drunk."  The Rev. Mr. Threlkeld said, that the prisoner told him that he got some bull from a public-house near the bridge for something he had done, which made him drunk, and that when drunk he had killed his wife, and was very sorry for it.

In putting the case to the Jury, His Honor said, it was impossible to avoid making those reflections which naturally arose to the mind upon hearing the case.  Fifty year have passed since this country was colonised, and a jubilee had been lately held to celebrate that day.  Happy would it have been if the celebration of that day had been accompanied by some measure for the amelioration of the unhappy class to which the prisoner belongs.  There can be no doubt that they are as much amenable to the British law as Europeans.  Parliament has been pleased to appoint certain limits to this Colony - in those limits the British standard is raised - and there are British law must be enforced; wherever the British standard floats, all persons, in the emphatic language of the law, are in the peace of God and the King, and whatever barbarous customs may be in existence must cease.  It would have been well if when this Colony was first planted some regulations respecting the intercourse of the whites with the natives had been enforced, and it is monstrous at the expiration of fifty years to find that no means have been taken either to instruct them in the precepts of our holy religion or to civilise them in any manner.  If the offspring of these wretched people had been taken into the bosom of the white people and properly instructed, we should not now find a young man like the prisoner, who is not more than half fifty years old, in the state we now find the prisoner.  Sitting as a Christian and a British Judge, I could almost say, that it would have been better if at the first planting of the Colony the native had been driven beyond the boundaries (although I, of course, deny any right to do so), where they could not have come into collision with the Europeans, and would not have been exposed to the temptations they now are, but would have been regulated by their own laws, which they are bound to obey; or else that they should have been so far subjugated that their children could have been instructed.  To them, in their present state, our laws are as a closed book; but, as I before observed, whether an outrage is committed upon a black by a white, or by a white upon a black, or by a black on one of his own tribe, wherever the British flag flies all persons are within the law, and the prisoner, savage as he is, must be tried the same as a European.  In conducting a case of this kind great difficulties exist from our not being able to get at the circumstance which led to the commission of the crime; we are in the dark as to whether there were not circumstances of mitigation that might make the case manslaughter instead of murder (His Honor here made several remarks upon the distinction between murder and manslaughter).  The law presumes that where death ensues from repeated blows given with an instrument like a waddy, that it is murder, unless circumstances are shown by which it is made a lesser crime; here unfortunately we are shut out from ascertaining how the quarrel originated, and it is for you to say whether from the evidence you can gather such circumstances as will lead you to return a verdict of manslaughter.

Mr. a'Becket asked His Honor whether the prisoner could be looked upon the same as a drunken white man, as he could hardly be supposed to know the effect of liquor.

His Honor said he could make no distinction; that was a consideration for those who exercised the prerogative of mercy, which was in safe hands, but the Jury must deal with the case by the evidence as if the prisoner was a white man.

The Jury retired about five minutes and returned a verdict of Guilty.

His Honor directed sentence of death to be recorded upon the prisoner, and observed, that he should take this opportunity of mentioning to the Queen's government several cases that had occurred before him in which the blacks were concerned, to shew the nature of the communication between the whites and blacks of this Colony.

 

Source: Australian, 4 May 1838

 

WEDNESDAY. -- Before Mr Justice Burton and a Military Jury.

Long Jack, an aboriginal native, was indicted for the wilful murder of Mary, his wife, at Maitland, on the 25th of February last, by beating her on the head with a waddy.

His Honor asked the prisoner several questions, by which it appeared that the black was well conversant with the English language, so as to render the assistance of an interpreter unnecessary.  Mr a'Becket, at the suggestion of his Honor, undertook the defence.

When called on to plead in answer to a question by his Honor, whether he did kill his wife, the prisoner said yes.  His Honor directed a plea of Not Guilty to be recorded.

It appeared in evidence, that the prisoner, with several other blacks belonging to his tribe, had become very drunk, by drinking a quantity of ``bull," given to them by a publican; and whilst in a state of the greatest excitement, he struck the deceased several blows on the head with a heavy waddy, which caused her death.  After deceased had fallen, he appeared quite unconcerned about it, and would not believe for some time that she was dead; when, however, he was satisfied of her death, he expressed his sorrow.  The only defence he offered when called on, was that he was drunk.

In putting the case to the Jury, his Honor expatiated at some length on the lamentable neglect in the civilization of the aborigines; since the foundation of the Colony, no means appeared to have been taken to improve their moral or religious state.  By the law of England they were, whilst within the boundary of the Colony, amenable to British law, of which they were totally ignorant, being governed among themselves, by laws enacted by and peculiar to themselves.  But however lamentable such inhuman neglect was, they were still amenable to the law; and the only question was whether there were any circumstances in the case which might palliate the crime, and justify a verdict of manslaughter.  On this point, difficulties also arose, as no evidence appeared as to the origin of the quarrel.

Mr a'Becket endeavoured to draw a distinction between a white and a black man in cases of drunkenness, the latter not being (he contended) acquainted with the nature of the liquor he was drinking, and being thus taken by surprise.

His Honor could make no distinction between white or black men; that was a consideration for those who exercised the prerogative of mercy.  The Jury must deal with the case according the evidence before them.

The Jury retired about five minutes, and found the prisoner Guilty - His Honor directed sentence of death to be recorded against him; observing, that he should avail himself of this opportunity of laying before the Government, many cases of the connection between the whites and blacks, which had come to his knowledge, in his judicial capacity.

 

Source: Sydney Gazette, 5 May 1838

 

(Before Mr. Justice Burton and a Military Jury.)

Long Jack, and aboriginal native, was indicted for murdering his wife Mary, by inflicting divers wounds on the head with a black fellow's waddy, of which she died at Maitland on the 25th February.

The facts of this case were very simple.  The prisoner and some other blacks were very drunk at Maitland; the deceased was seen running from the blacks' camp pursued by her husband, who overtook and gave her several blows on the head with a waddy.

In summing up, his Honor said that it was lamentable, that although it is now upwards of fifty years since the Colony was first inhabited by the British, so little has been done for the amelioration of the black natives; but notwithstanding the almost savage state of the prisoner he must be dealt with as a European, as it is a well known principle of British law, that wherever the British standard floats the inhabitants are within the pale of British law, and whatever savage customs may have been in existence must cease.  His Honor said that there were great difficulties in this case, because it was almost impossible to get at the motives which led to the quarrel, which might perhaps shew that the crime was committed under such circumstances as would reduce it from murder to manslaughter, but the jury were bound to return a verdict according to the evidence, and unless from the evidence the jury could gather any circumstances that would lead them to think it was such a case as would not have amounted to murder if committed by a European they must find the prisoner guilty.  The Jury retired about five minutes and returned a verdict of Guilty.

His Honor ordered sentence of Death to be recorded against the prisoner, and said he should take this opportunity of reporting to the Home Government several cases that had come before him in which the blacks were concerned, in order to shew the nature of the communication between the blacks and whites of this Colony.

 

Notes

[ 1]See also R. v. Murrell, 1836; R. v. Ballard, 1829.

This hearing was also recorded in Burton, Notes of Criminal Cases, vol. 34, State Records of New South Wales, 2/2434, p. 103.  Rev. Threlkeld proposed to act as interpreter, with the assistance of MacGill, another Aborigine, without whom he could not communicate with the defendant.  Threlkeld said MacGill had been with him for 10 years, had been instructed by him, and helped him in translating the scriptures.  Burton noted, however, that MacGill had not been baptised; Threlkeld would have done so, had MacGill understood religion.  Burton then declined receiving him as a sworn interpreter.  He then found that the prisoner was sufficiently conversant in English for the trial to go ahead.  The prisoner understood why he was in court, and the questions put to him.

Threlkeld's account of what he learned from Long Jack is in Miscellaneous Correspondence Relating to Aborigines, State Records of New South Wales, 5/1161, 347-349.

On a police hunt for other Aborigines in the Goulburn district who were accused of murder of Faithful's men, see Miscellaneous Correspondence Relating to Aborigines, State Records of New South Wales, 5/1161, 337-343.  At 344-346, there is a list of 14 Europeans killed by Aborigines between 1832 and 1838.  Threlkeld also reported the murder of Aboriginal women by other Aborigines, at 370-373.  See also 502-504 for his report of clashes between Europeans and Aborigines.  At 511-514 there is an anonymous memorandum on ``Outrages upon the Aborigines". 

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.

Published by the Division of Law, Macquarie University