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

R. v. Lamb [1839] NSWSupC 6

Aborigines, killing of - Liverpool Plains - murder - Aboriginal evidence - Myall Creek massacre

Supreme Court of New South Wales

Dowling C.J., 14 February 1839

Source: Sydney Gazette, 14 February 1839[1] 

On his Honor the Chief Justice taking his seat, James Lamb, Charles Toulouse and George Palliser, three of the men charged with the murder of the aborigines at Liverpool Plains, were put to the bar.

The Attorney General said, that it would be in recollection of the Court that at the last Sessions the trial of these men, with another, was put off, in order that time might be allowed for instructing a material witness, named Davey, an aboriginal black, in the nature of an oath.  Although two months had elapsed since that time, Davey still remained in the same uninstructed state, and he (the Attorney General) said, he thought he should not be doing his duty if he risked proceeding to trial without his evidence.  As the rules of the Court would not admit of putting off the trial from Session to Session, ad infinitum, he could adopt no other course than leave the matter in the hands of the Court, in order that they might be discharged; but he hoped that, as one of them (Palliser) was a free man, he might be ordered to find bail proportionate to the offence, and the other two being prisoners, could be returned to the service of the Government.  Blake, the other prisoner, remanded with them, he considered there was not sufficient evidence to include him.

The Chief Justice enquired whether there was any chance of instructing Davey?

The Attorney General said he was afraid not, as no instance was known of aboriginal blacks having been sufficiently instructed.

Mr. a'Beckett submitted that Palliser being a free man, after the explanation of the Attorney General, was entitled to his discharge.

The Chief Justice then addressing the prisoners observed, that fortuitous circumstances had relieved them from the peril of being tried for murder, which he hoped would have a salutary effect upon them for the remainder of their lives, if it should happen that they were not brought to justice for the crime in question.  He said, but for the circumstance [de]tailed above, it was probable that more sacrifice would have been made for the blood-shed as detailed before the Court, and he earnestly warned them if they were not brought to justice to repent of their sins.  They had on a former occasion been tried and had been pronounced not guilty, and as the verdict had been delivered under the sanction of an oath he would not call it in question.  He added, that whether the still small voice of conscience echoed to the justice of that verdict he could not discover that only could be known to their God.  In the partial justice that had already been made, he said, human justice might be satisfied, as the law was not revengeful; but if any barbarizing delusion had entered the hearts of those who presumed to make a distinction between God's creatures, he hoped that the delusion would be dispelled by the example shown.  Public opinion, he was confident, would applaud the justice that had been done, and would not, he trusted, censure the mercy shown them.

Lamb and Toulouse were then discharged to Hyde Park Barracks, and Palliser set at large upon his entering into his personal recognizance of £500, to appear when called upon.

 

Source: Australian, 16 February 1839

 

THURSDAY. -- Before His Honor the Chief Justice.

George Palliser, Charles Toulouse and James Lamb, three of the men charged with the murder of blacks at Myall Creek, were placed at the bar.

The Attorney General said, that it would be in the recollection of the Court that, at the last Sessions, he had applied for the postponement of their trial, in order to allow of a native black, named Davey, who was a material witness for the prosecution, to be instructed in the ordinances of religion so as to qualify him to give evidence. The black in question had been under the tuition of a competent person for two months, but it was now reported to him that he was not so far instructed as to be a competent witness, and it was quite uncertain when he would be; and he (the Attorney General) did not think he should be doing his duty in risking public justice by prosecuting the case without his evidence. In this state of things, it could not be expected that the prisoners should be kept in confinement ad infinitum, and he should therefore leave the case in the hands of the Court, recommending that Paliser, [sic] who was a free man, should be called on to enter into recognizance to appear when called on to take his trial; and the other two men returned to the custody of the government, when they could be brought up at any time, if circumstances allowed of their begin put on their trial. He would now put the indictment on the files of the Court, and leave it to His Honor to make any amount for Palliser's recognizance, he thought fit. The fourth man Blake, was not included in the indictment, as, in the exercise of his discretion, upon looking carefully over the evidence given on the former trial, there did not appear to be sufficient legal evidence to convict him.

The Chief Justice wished to know if the Attorney-General entertained any hope that the black man Davey, would ever be instructed so as to be able to give evidence in the case.

The Attorney General said, that the case was very improbable, as there was no precedent of any of the blacks having been so far instructed as to be competent witnesses in a court of justice, although the experiment had been frequently tried. The black in question was a very intelligent lad, but had been in a remote part of the country and had been too short a time under tuition to be enabled to judge of what might be accomplished, or in what probable time: and he might add that the hope was a very slender one, as a man named McGill who had been several times before the Court, and who had been educated and in fact reared amongst the Missionaries, under the immediate superintandence of the Rev. Mr. Threlkeld, was not competent to give evidence having no belief in a future state of rewards and punishments.

The Chief Justice. -- Then you undertake to say, that the man Davey cannot be instructed so as to be a competent witness, Mr Attorney?

The Attorney-General said, that he could not go quite so far as that, but with the facts he had stated to the Court before his eyes, he would say that it was very improbable.

The Chief Justice. -- You state that this black is a necessary and material witness, and that you cannot safely go to trial without him?

The Attorney-General. -- I cannot proceed with the trial with any hope of success without his evidence, and affidavits are on the files of the Court, which state that he is a necessary and material [sic] witness.

Mr A'Beckett contended that, after the Attorney-General's statement that the evidence of the black, who was the principal witness, was unattainable, the prisoner Palliser was entitled to his discharge without being required to enter into recognizance for his appearance. It did not appear on the affidavits, that means had been taken to instruct the black Davey, independently of the admission of the Attorney-General, that there was small hope of success if he was instructed of his ever becoming a competent witness.

The Chief Justice addressed the prisoners. The fortuitous circumstances which had relieved them from being tried at this sessions, for the wilful murder of the blacks, for which their associates had already suffered the extreme penalty of the law, was fortunate for them in an earthly sense, as he hoped that it would have a lasting and salutary effect on their lives. But for the circumstance alluded to, it was more than probable that more sacrifices of life must have been made to public justices; and he earnestly entreated the prisoners, if they were not brought to justice at some future time, to repent, and endeavour to atone for what there was too probable belief they had been guilty of. It was true that a Jury of the country had, upon one occasion, declared by their verdict that they were not guilty of the crime imputed to them, and that verdict was returned upon the sacred oath to Almighty God, of the Jury, that they would administer impartial justice. He (His Honor) had too much veneration for that tribunal to doubt for one moment the impartiality of that verdict, which had been condemned by some. If there had been any cause for fault, it had been atoned for, and it had been a very fortunate issue for the prisoners, and ought to a lasting lesson to them. But if they were not brought to justice, there was still that still small voice which would without fail admonish them, and, if their conscience did accuse them, he hoped they would repeat and atone to God for any part they might have taken in the bloody affray with which they had been charged. In the partial justice which had already been done, perhaps, a sufficient sacrifice had been made in atonement for the crying crime, and if there had existed a barbarous delusion in the minds of some hard hearted-men, he hoped that it was now dispelled, by the efforts that had been made to satisfy justice. Public justice had been outraged, and to a certain extent appeased, and he was persuaded that if it was found not practicable to proceed further in the matter, that the public opinion would relieve all parties from any imputation of not having done all that was possible to be done to perfect the demands of justice, and would consider that the sacrifice already made was sufficient atonement. The Attorney-General had informed him that he was not able to proceed, and he was bound to presume that the indictment could not be sustained. Under these circumstances, he ordered that Palliser enter into his personal recognizance in £500 to appear when called on to take his trial, and that the other prisoners be returned to the custody of the government.

 

Notes

[1]  This was to have been the third of the Myall Creek trials.  All three of these defendants had been found not guilty at the first of those trials, R. v. Kilmeister (No. 1), 1838.  Their other co-defendants were then found guilty at the second trial, R. v. Kilmeister (No. 2), 1838, and hanged. (For further documents on these cases, see Miscellaneous Correspondence documents numbers 27, 27a and 27b.)

The Sydney Herald, which had played such a disgraceful role in the Myall Creek trials, in effect urging the juries to acquit no matter how strong the evidence, did not report this case, the last in the saga.

For civil litigation affected by these trials, see Hobbs v. Dangar, 1839.

Published by the Division of Law, Macquarie University