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

R. v. Barclay [1839] NSWSupC 2

Aborigines, killing of - Aboriginal evidence - Matavia

Supreme Court of New South Wales

Willis J., 1 February 1839

Source: Australian, 5 February 1839[1] 

Henry Barclay was indicted for slaying an aboriginal black named Jemmy, or Moses, at Matavia, on the 4th August last.

The prisoner is a stock-keeper in the service of Mr Lowe, of the Big River.  On the day laid in the indictment, a fellow-servant named Kelly, went into the bush to look after cattle, and was accompanied by the black man in question; they got the cattle, returned to the hut, and had supper; after supper the prisoner got up and said he would go and give the black fellow a good thrashing, stating that he had stolen some dogs from him.  The prisoner went towards the black, and kicked him, when the black raised his nulla nulla, which the prisoner wrested out of his hand, and struck him over the eye; the blood flowed from the blow, and the prisoner then threw the nulla nulla away, and struck the deceased several times with his fist about the body; the black made away as well as he could, staggering along, and sometimes supporting himself by the fence.  The prisoner then called the dogs, but witness kept them back by enticing them with a piece of meat, so that they should not follow the black. Deceased made towards the creek, and witness never saw him after.  On his return to the hut, witness saw another black named Titty-bong, who took a fire-stick and followed the deceased.  On the following morning Titty-bong returned to the hut, and in presence of the prisoner, said ``Jemmy is dead;" witness understood him to mean the deceased; the prisoner told him to go away for he was gammoning, but Titty-bong said that the body was buried a short distance from the hut, by the creek-side; witness saw the new grave that had been made as described by Titty-bong, but he never saw the body.

In his cross-examination witness admitted that Titty-bong could scarcely speak a word of English, but that it was interpreted by a black gin who was stopping at the place with Barclay. He also admitted that the deceased raised the nulla nulla to strike the prisoner before he snatched it from, and hit him on the head.

In consequence of the imperfection of the witnesses' evidence which was partly acquired by interpretation by a third party, the Crown prosecutor said he would not proceed with the case.  It did not appear that the prisoner had any idea of killing the deceased, only of giving him a thrashing.  The prisoner was accordingly discharged.

 

Notes

[1]  See also Sydney Herald, 4 February 1839, reporting the case as follows:

``Henry Bartley, assigned to Mr. Robert Lowe, was indicted for killing a black, named Jimmy or Moses, at Mathegi, on the 4th August, by striking him on the head with a blunt instrument.

``This case failed, there not being any evidence of the death of the black; but it was proved that the prisoner struck him once or twice for stealing a dog.  Mr. Therry said, that it did not appear that the prisoner had any intention of killing the black.  Not guilty."

Published by the Division of Law, Macquarie University