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

R. v. Sandy [1839] NSWSupC 61

Aboriginal defendant - Aborigines, interpreters - Aborigines, legal status - stealing from a dwelling house - Gwyder River - Namoi River - land law, squatting - squatting, Aboriginal reaction to - Aborigines, reaction to squatting - Aborigines, war with Europeans - Commissioner of Crown Lands - Irish law, relevance of in New South Wales - reception of English law, interpreting - Aborigines, legal representation - Port Phillip

Supreme Court of New South Wales

Dowling C.J., 29 May 1839

Source: Sydney Herald, 31 May 1839[1] 

The Attorney-General[2] said there are five black natives in gaol, who were committed to take their trial for murder, and whom it was his intention to have tried this session for robbery, but was prevented from want of an interpreter.  Mr. Threlkeld, and Mr. Macdonald, one of the newly appointed Commissioners, who has had a great deal of experience with the blacks, had both seen these men, but could not make them understand.  Measures had been taken, however, to procure the attendance of a servant of Mr. Walker, who now resides at the Big River, and understands the language of the blacks in that district, so that by next session they can be tried; in future, this man is to be attached to the Commissioners as an interpreter, and he hoped the Government would attach an interpreter to each Commissioner, as it would greatly facilitate the ends of justice.

The Chief Justice. -- Yes.  If these people are protected by the English law, we must take care to protect the whites against them -- there must be no distinction.

 

Dowling C.J., 16 August 1839

Source: Sydney Herald, 19 August 1839[3] 

 

THURSDAY. -- Before the Chief Justice.

The Attorney General stated that he had placed an information upon the file against five aboriginal natives charged with robbery, and he had an interpreter in attendance.  The prisoners were then placed at the bar, and a man named John Haggard was produced as an interpreter.

In answer to questions put by His Honor, Haggard said that he did not know their dialect perfectly, but could make them understand; he had never seen them until he saw them in Gaol as their part of the country is distant from where he has been stationed; he could not make them understand everything, but could make them know the nature of the charge.  The interpreter was then sworn, well and truly to interpret between the Queen and the prisoners, according to the best of his skill and knowledge.

The prisoners were then indicted by the names of Sandy, Billy, Jemmy, Cooper and King Jack, for stealing one waistcoat, the property of the Queen, two carbines, three pistols, seven blankets, one waistcoat, a quantity of gunpowder, six bullets, and a quantity of flour, the property of John Brown, John Hector and Edward Trimmer, from their dwelling-house at the new station, between the Gwyder and Namoi Rivers, on the 16th March.  The prisoners, when the indictment was explained to them, denied the charge, upon which a plea of not guilty was entered.  When asked whether they would be tried by a Civil or a Military Jury, they said they did not like soldiers, upon which the Court directed a Civil Jury to be sworn and charged.

Mr. Windeyer was assigned to the prisoners as Counsel.

The Attorney-General stated that Mr. Frederick Ogilvy, who was in attendance, and had some knowledge of the native language, would assist the interpreter.

The Attorney-General then opened the case for the prosecution.  He said the prisoners, as you have heard, are charged with stealing from a dwelling-house above the value of £5, but the indictment does not inform you of the entire charge against the prisoners, and I shall now state that charge to you without making any observations that may be calculated to prejudice the prisoners.  It seldom occurs that we see aboriginal natives at the bar of this Court although we not unfrequently hear of many acts of outrage committed by them, but whether these acts are committed in resisting aggressions we have no means of ascertaining.  But the prisoners are not to be prejudiced by this circumstance any more than white men who are tried in this Court for robbery are to be prejudiced because bushrangers have been committing outrages.  When once they are in this Court, there is no distinction between blacks and whites -- in this Supreme Court, there is but one law for all Her Majesty's subjects.  I will now briefly state the circumstances of the case.  In the month of March last, Messrs. Hector and Company, from the great increase of their sheep and cattle, found it necessary to establish another station, and men went to a place between the Namoi and Gwydir Rivers, where they erected a a hut. The blacks, among whom were the prisoners, received the men in a very friendly manner and assisted them in stripping bark.  They lived together very friendly for several days, when Taylor, one of the men, went away to the lower station for provisions.  They were treated with great kindness by the men, but the day on which he left the station, Taylor observed something in their manner which was altered, and they did not appear so friendly as they had been, but he did not attach much importance to that.  When Taylor left the hut, he left two white men there, and the prisoners at the bar were all there.  When he returned to the hut on the 17th, he observed that the door was closed, and saw two hats lying together outside; this made him suspect that something was wrong, and without dismounting he rode up to the hut, and looking in, he saw everything in disorder, as if the place had been plundered; his impression was that the men had been murdered by the natives, and he would not dismount for fear any of them should be in ambush, but rode off to the nearest station for assistance.  When he first looked into the hut, Taylor saw a spur and stock whip, and when he returned with other men he observed that these articles were gone which clearly shewed that the parties who committed the robbery, and the murders were not far distant.  Upon going into the hut, Taylor found that everything was gone but a tomahawk and a cross-cut saw.  The men who were left in the hut could nowhere be found, but after considerable search, the bones of a human being were found, but they were entirely separated from each other, and the parties who found them could not tell whether they were the bones of a white or of a black man.  The thigh bones were broken, and the scull was fractured, and there could be no doubt that the murder had been committed through this wound on the head, and they, of course, thought that they were the remains of one of the unfortunate men who had been left in the hut.  From your attendance in this Court as Jurors, gentlemen, you must be aware that to substantiate a charge of murder, it is necessary that the body be identified, which in this case was impossible, and that is the reason perhaps that the prisoners are not on their trial for another offence -- indeed it is the reason.  The remains of the other man have never been found, and whether he is alive or dead is not known by any one, as no trace of him has ever been discovered.  When Taylor left the hut, there were some pistols, carbines, flour, and other articles in the hut, which were gone upon his return, and the articles were found upon the prisoners, when they were apprehended, and a waistcoat belonging to one of the men was found upon one of the prisoners.  This shews that the prisoners must have been connected with the robbery, as in law, persons with whom, immediately after a robbery, stolen property is found, are considered guilty until they shew themselves to be otherwise. The prisoners are indicted for stealing from a dwelling-house above the value of £5, which subjects them to a greater punishment than if the articles stolen did not come up to that value.  The facts that I have stated are what I intend to adduce as evidence, to shew that the prisoners are the persons who plundered the station.  The other crime to which I have alluded, is so intimately woven with this offence, that I could not avoid stating the circumstances, nor will the witnesses, in giving evidence, be able to separate the cases, but still the charge of robbery against the prisoners is the only one you have to enquire into.  Some of the prisoners, I understand, can speak English very well; they were treated with confidence by these men, and shewed that they were not inferior in intelligence to many white men.  When the blacks were taken, they at once admitted that these articles did belong to the hut.  A great deal of good has been done in that part of the country by Mr. Mayne the Commissioner of Crown Lands, through whose instrumentality, peace was restored between the blacks and whites -- for up to the time that he went there they were at open war. There is much greater difficulty in apprehending an aboriginal native than a white man, after an offence has been committed -- and this, in fact, is the only difference between them.  There is also, unfortunately, not the same facility for identifying a black, that there is a white; they are all naked, and to an eye not used to black people, it is impossible to see the difference.  But, gentlemen, when blacks are identified they are punished the same as white men, and I hope that the punishment of these men, when it is made known to their tribe, will have a salutary effect.  We all know that white men are often tried in this Court for robberies and other offences, when their [sic] is good ground for suspecting that they have committed murder, but for want of proof of that offence, they are not put upon their trial -- and it is in this way that I have put the prisoners upon their trials, not for murder, but for an offence which I can prove.

Alexander Taylor was then called and sworn, when Mr. Windeyer submitted that every question must be interpreted to the prisoners.

The Attorney General said, that he was confident that he had witnessed a thousand cases of this kind in Ireland, especially in the county Mayo, where very few of the inhabitants speak English, but wherever the prisoner was defended by counsel, the evidence was not interpreted to the prisoners.

The Chief Justice said that in every case of this kind, which he had seen either at the Old Bailey or on Circuit, every question was interpreted to the prisoner whether defended or not.

The Attorney General said that he must beg His Honor to make a note of his objection to this course, and he did so from having seen the course pursued in the country, where it is a matter of every day occurrence, and there if a prisoner is defended, an interpreter is not considered necessary, and it is well known that some of the Judges of Ireland would have been an ornament to any country.

The Chief Justice said that he was not saying anything against the respectability of the Irish Judges -- he would make a note of the Attorney General's objection, but he was quite clear and decided upon the point.

Mr. Windeyer begged His Honor also to make a note, that he (Mr. Windeyer) had had no communication with the prisoners, but had been assigned to them as Counsel by the Court.

The Attorney General said that no overstrained humanity must be considered in the case, the prisoners must be dealt with the same as foreigners.

The Chief Justice said that he must deal with them the same as with a deaf and dumb man -- he must deal with them by the law of England, which is the law of this Colony -- not the law of Ireland.

Haggard the interpreter was then examined by Mr. Windeyer as to his competency.  He said that he was no accustomed to speak the prisoners' dialect, but could make them understand many things; the dialect in that part of the country is called the Comileroy, and extends a great distance, but there is as much difference in some parts of it as there is between broad Scotch and English; even in the part with which he is accustomed, he is not so perfectly acquainted with the language as to be able to understand every word of a conversation between two natives; he could tell the prisoners that they were charged with a robbery.

Mr. Windeyer submitted that this was not sufficient.

The Chief Justice said, that a perfect interpreter was not necessary, all that he wanted was a person who could bring home to the prisoners' minds the substance of what was going on.

Mr. Windeyer said, that he wished to speak to the prisoners, and as he could not communicate with them himself, he hoped that His Honor would appoint an attorney for the prisoners.

His Honor appointed Mr. David Chambers, who was the only attorney present.

Mr. Windeyer requested the interpreter to inform the prisoners, that the Court had appointed an attorney to conduct their case, and that anything that they told him would be sacred and not used against them.

The Chief Justice told the interpreter to inform the prisoners that those two gentlemen were their friends, and would conduct their defence, and they might place sufficient confidence in them.

The interpreter said, that he could not interpret this.

Mr. Windeyer said, that this showed that the interpreter was not competent.

The Attorney-General said, that no spurious humanity should be allowed to interfere -- counsel might take Johnson's dictionary in his hand, and pick out all the hard words and ask the interpreter to translate it.

The Chief Justice said, that he would not allow the term spurious humanity to be used; the objection was a lawful one, and one, which, if the prisoners had had no counsel, he (the Judge) would have been bound to take.  Were it a mere technical objection he would not uphold it for a moment, but this point was of the vital substance of the case.

The Attorney-General said, that the case ap-appeared [sic] to him to be exactly analogous to the Irish cases, which he had seen tried repeatedly without an interpreter.

It was then agreed that the case should be adjourned for an hour, in order that Mr. Windeyer and Mr. Chambers might have an opportunity of communicating with the prisoners.

At the re-assembling of the Court the examination of the witnesses was proceeded with, all the leading facts in the case being translated to the prisoners by the interpreter, who appeared to speak the language fluently.

Taylor swore to the facts as stated by the Attorney-General in the opening speech.  In cross-examination he said, that two saddles, a bridle, and two horses were stolen from the station at the same time, which have never since been heard of.  From the evidence of Mr. Commissioner Mayne and Sergeant Anderson, it appeared that a rumour of the murder having been spread, they went to the blacks who were assembled to the number of five or six hundred, and through an interpreter got them to deliver up the property which came from the hut.  They brought six or seven blankets of a similar description to those stolen, and one of them had on a waistcoat like that worn by one of the men, who are supposed to have been murdered; two of the prisoners brought a carbine each which they gave to the Sergeant, saying ``tumble down white fellow," but it could not distinctly be understood whether they meant that the guns had killed white men, or that they, (the blacks) had killed white men.  A few days afterwards the report of the murder having taken place was ascertained to be correct and the property indentified [sic], upon which Mr. Mayne issued his warrant and the prisoners were decoyed into his tent and apprehended.  They were then taken before Mr. Day and committed to take their trials, but the depositions of the witnesses were not interpreted to them.

Mr. Windeyer took several technical objections, all of which were overruled by the Court.

The prisoners were then called upon for their defence, and each of them stated, that they received the guns and blankets from two blacks named Arrodilly and Wolloroy.

The Chief Justice summed up at considerable length.  He said that the prisoners must be tried upon the same principles, and the same rules of evidence as if they were white men, and he invoked the Jury not to suffer their minds to be prejudiced by anything that they had heard out of doors, but simply agree upon their verdict according to the evidence adduced.  In forming their verdict they must also consider the helpless and prostrate condition of the prisoners -- they could not understand what had been said against them, and from the depositions taken before the Magistrates not having been interpreted to them, they were entirely ignorant of the charge upon which they had been committed.  The prisoners had no adequate means of defence; they said that they received the property from two other blacks whom they had no opportunity of subpoenaing and who, if they were present, from their unhappy state of ignorance and darkness their evidence would not be admissable.  That the hut was plundered there was no doubt, and the question for the Jury to determine was whether or not the prisoners were the plunderers.  His Honor then went through the whole of the evidence commenting upon it as he went along, and concluded by solemnly invoking the Jury to deal with the prisoners exactly as if they were white men placed in the same unfortunate condition.  The Jury retired about half an hour, and returned a verdict of guilty against all the prisoners, who were remanded.

The case lasted until six o'clock in the evening.

 

Dowling C.J., 16 August 1839

Source: Australian, 17 August 1839[4] 

 

Sandy, Billy, Jemmy, and King Jacky, were put to the Bar charged with a robbery committed at a new station between the Namoi and Gwyder rivers.

A man named John Haggart, who had been a long time resident amongst the blacks, and who appeared to be perfectly conversant with their language was sworn in as interpreter, and explained the nature of the indictment to the prisoners, who severally pleaded not guilty, and selected a civil jury stating that they did not like the soldiers.  At the suggestion of the Attorney-General, Mr Ogleby, who came into Court, after the interpreter was sworn, was also appointed to watch the examination, as he stated, that he had a knowledge of the language.

The Attorney-General stated, that Mr Justice Stephen was unwell, as was also Mr Justice Willis, in consequence of which only one Court would sit, and the military jury might withdraw until one o'clock.

A civil jury was sworn in, and by desire of the Court, Mr Richard Windeyer consented to defend the prisoners, at short notice, and was furnished with a copy of the indictment.

The indictment charged the prisoners with stealing two carbines, three pistols, wearing apparel, seven blankets, a quantity of flour, and other articles to the value of £5, the property of John Brown, John Hector, and John Trimmer, at the Gwyder river on the 16th of March last.

The Attorney-General addressed the jury and said, that although the prisoners were placed at the bar to answer the charge of stealing to the amount of £5, there were other circumstances connected with the case which would have to be stated, but which were not to prejudice the jury against the prisoners in the consideration of the present indictment.  It was true that blacks were seldom brought before the Court, and when they were, the reports of aggressions committed by them in the bush were not to be allowed to prejudice the minds of a jury against them.  They were equally amenable as they were entitled to the protection of the laws which made no distinction between blacks and whites.  In this case the prisoners had all been well acquainted with the whites and had constant intercourse with them.  Messrs Hector and Brown had had stock and sheep stations at Liverpool Plains where the blacks had been in association with the whites, and in consequence of those gentlemen having made large purchases of stock, it was found necessary to establish stations further in the interior.  For this purpose the men proceeded to a place between the Namoi and Gwyder rivers, where they were well received by the blacks who evinced the most friendly disposition towards them, and assisted to build their huts by stripping bark from the trees.  About the 15th or 16th of March it was necessary for one of the men to go to the head station for supplies of meat and other things, and at the time this man, named Taylor, started, he observed that there was a marked alteration in the disposition of the blacks, but did not take much notice of it and started off leaving two shepherds and the prisoners at the station.  He returned on the 17th of March, and on arriving at the hut, he observed, that it was deserted, and presented the appearance of having been plundered; and he also observed two hats belonging to the shepherds lying at the door, which made him conjecture that the men had been murdered.  In consequence of this he did not dismount from his horse, thinking that the blacks might be concealed in the bush to suprise [sic] him, but he looked into the hut, saw every thing in disorder, and observed a spur, a whip, and some other small articles hanging up.  He immediately rode away to the nearest station, reported the circumstance and obtained assistance, with which he returned to the hut, and he then found that his conjectures had been correct, as the articles he had seen hanging up in the hut when he first went had been removed during his absence by some person who must have been lying in ambush near the spot.  On examining the place on his return, he found that all the articles, consisting of carbines, pistols, blankets, and flour, had all been [ca]rried off, with the exception of a tomahawk and a cross-cut saw which were planted and had not been found.  The two hats he knew to have belonged to the shepherds, who he immediately concluded were murdered and a search was made for the bodies.  After a long search they at length found the bones of a human body which, however, were so mutilated that it was impossible to say whether they belonged to a black or to a white person.  The thigh bones were broken and the scull appeared to have been fractured at the back; in fact, they had no doubt on their minds that they were the bones of one of the shepherds, but, as the jury from their long experience in courts of justice, must know, parties were never put on their trials for murder unless the body could be identified, and as it was impossible to say whether the bones were those of a white or a black person, that was the reason why the prisoners had not been put on their trials for a more serious offence.  No trace had been found of the second body so that it was impossible to say whether the man was alive or dead, but there was the fact, that when Taylor left the hut to proceed to the lower station, the carbines pistols, and waistcoat, were in the possession of the shepherds at the hut, and they had afterwards been found upon the prisoners, and as it was always presumed, that articles missed, and found in the possession of other parties, were dishonestly come by, until they accounted for the possession of them.  The prisoners had been put on their trials for the stealing to the amount of £5, which was a distinction the law made, to admit of a greater punishment than was accorded in smaller offences.  He had not been able, in stating the circumstances, to disconnect the facts of the supposed murder from the robbery, nor would the witnesses in giving evidence be able to do so, but the jury would bear in mind that that supposed fact was not, in any way, to bias their minds either one way or another.  Most of the prisoners could speak and understand English well, and had had constant intercourse with white men, and they had made no secret of the articles found upon their persons, when captured, belonging to the shepherds, who had been left with them at the hut when Taylor left.  He felt it due to Mr Mayne, to state, that it was entirely owing to that gentleman's activity and good management that the prisoners had been apprehended, which had always been a matter of great difficulty in consequence of the facility of escape which the blacks had over the white people.  It was always difficult to identify the blacks from the great similarity of their features, but when they were identified as, in this case, they were satisfactorily, the law must take its course, and he hoped, if the prisoners were found guilty that their punishment would have a salutary effect upon the tribes of blacks and put a stop to the aggressions which were generally attributed to them.

The interpreter was called forward and Mr Windeyer, on behalf of the prisoners, objected to his competency, and demanded that the evidence, as given, should be communicated to the prisoners in the form of question and answer, in order that they might be made acquainted with what was sworn against them.

The Attorney-General objected to this mode, as quite unnecessary, seeing that the prisoners were defended by counsel, who was supposed to be in full possession of the facts, and in his experience in Ireland where prisoners, who could not speak one word of English, were put on their trial and defended by counsel, such a course was never adopted.

The Chief Justice said, that at the Old Bailey such a practice was always allowed whether the prisoner was defended or not, and there could be no doubt of the justice of instructing prisoners in what was sworn against them.  If it were not so, the prisoners might as well be kept in the gaol, and the trial conducted in their absence.

The Attorney-General wished His Honor to make a note of his objection and Mr Windeyer also objected that he had not been employed and instructed by the prisoners, but assigned by the Court, and that the prisoners were entitled to know the ev[i]dence.

Haggart, the interpreter, examined by Mr Windeyer -- I am produced at the instance of Mr Mayne and not at the instance of the prisoners; I can make them acquainted with the nature of the charge preferred against them, but I cannot communicate every question that may be asked; I come a great distance from the prisoners, but their language is in some things the same as that I learned; I have not been accustomed to converse with the natives of their part of the country; when first I conversed with the prisoners, I asked them if they understood me and they said, they did a little; I could understand some natives of their part of the country although not all; the prisoners talk the Comlerai dialect, which is spoken in a great extent of their country, but it varies in different parts; I am a Scotchman and their language varies as much as broad Scotch and English; I do not speak the native language perfectly, nor do I understand the prisoners perfectly; I would not like to swear to a whole conversation of theirs; I can undertake to swear that I know the term in their language which indicates robbery; I cannot converse with the prisoners as well as I can with the natives of my own part, and I cannot converse with them perfectly.

Mr Windeyer objected to the interpreter as not competent.

The Chief Justice said, that the Court must get the best information it could.  All that was necessary was, to make the prisoners acquainted with the substance of the charge and evidence.

Mr Winderyer applied to the Court to assign an attorney for the prisoners, as the Court must be aware, that counsel could not communicate with the prisoners personally, and there might be questions to put to them.

The Court requested Mr David Chamber to act as attorney, which was accepted by that gen[t]leman.

Mr Windeyer requested that the interpreter might convey to the prisoners, that Mr Chambers was their friend, and that they might tell him any circumstance in their favour which would be confidential, and for their good.

The interpreter Haggart said, that he could not make known to the prisoners, that the counsel and attorney were their friends.

The Attorney-General suggested, that the Court should be adjourned for an hour, in order to give Mr Chambers and the prisoners, time to consult together, so that they might be impressed with the conviction that they had a friend in their attorney.

The witness Taylor said, that the prisoner Cooper understood English well, as could be proved by a witness present.

The Court said, that as the jury was charg[ed] with the prisoners, one could not now be [se]lected to be placed separately on his trial.

The Attorney-General said, that in the exercise of his public duty, he should make a stand against the objections taken by counsel, as he could not suffer a spurious humanity to interfere between the prisoners and public justice.

The Chief Justice said, that he could not allow Mr Attorney to use such a term as ``spurious humanity."  The prisoners were placed on their trial, which would be conducted upon the prin[c]iples of English law, and they would me[et] full justice from the Court.

The Attorney General said, that he did n[ot] intend to apply the term to the Court, but [note] the objections taken by the counsel which he could not but regard as spurious.

After some further discussion, the Court w[as] adjourned for an hour, to enable Messrs. Windeyer and Chambers to consult with the prisoners.

The Court re-opened at one o'clock, an[d] Alexander Taylor, the stockman, who w[ent] from the new station where the robbery was said to have been committed, to the old station for supplies, leaving the prisoners and the shepherds together, was called and gave evidence which corresponded exactly with the Attorney-General's opening speech, with the addition th[at] the bones found about forty rod from the h[ut] were naked, putrid, and broken to pieces; t[he] skull had several wounds on it, and a hole [in] the forehead, evidently done with a spear; th[e] bones were quite green and apparently n[ow] stripped of the flesh; the thigh bones w[ere] broken and the marrow taken out; two sadd[les] and two bridles which were hanging up in the h[ut] were also taken, and two horses were miss[ing] he was of opinion that the men had been m[ur]dered, as they would not have left their h[?] behind them if they had run away; there w[ere] plenty of black people's tracks about the b[ush] and signs of scuffling on the ground; the [?] missing and supposed to have been murder[e]d wore boots, and there was no tracks of bo[ots] among those of the naked feet of the blac[k] witness believed the skull to be that of one [of] the white men, in consequence of the forma[tion] of the teeth which are totally dissimilar to bl[ack] people's teeth; there were twenty or th[irty] black women amongst the tribe, and some [of] them went to the hut but were never ill tre[ated] to the witnesses knowledge; the place where [the] hut was erected, was the usual place of reside[nce] for the prisoners, who continued there on the lower part of the creek with the rest of the tribe constantly; there were from fifty to sixty blacks, and th[e]y had all gone away when he returned from t[h]e other station; the station was about two hundred miles beyond the boundaries.

Mr William Macdonald -- Was superintendent to the Clover Leaf Company, which consisted of Mr John Brown, Mr John Hector and Mr Edmund Trimnell, who were in partnership in the stock, and their brand was a clover leaf, which gave rise to the name of the company.  This witness was called to corroborate the evidence of Taylor, and to prove the value of the articles stolen, which he could not satisfactorily do.  The most particular fact which struck his attention was, the bones were all broken at the joints, and the marrow appeared to have been taken out.  Witness gave his deposition before a Magistrate, but the prisoners were not present, and had not an opportunity of cross-examining him.  No trace of the horses, bridles and saddles which were lost, had been found to this day; witness heard that there were bush-rangers out to the northward and eastward of this station, who had committed several depredations, but he never heard that they were mounted; witness had since sent cattle up to that station, but they did not do well as he thought, because they were frightened away by the blacks, to whom they had an antipathy.

William Anderson, sergeant in the Mounted Police, was with Mr Mayne, at the Big River, above Liverpool Plains, in March last.  He apprehended the prisoners with the assistance of Mr Mayne and Mr Ogleby, on the 10th March, near Mr Fitzgerald's station, cal[l]ed Walter's Creek, which was about 150 miles from the hut where the robbery was committed; the prisoners Billy and Cooper gave witness two muskets now produced, and stated that they had tumbled down two white men; they also gave up some blankets similar to those produced, also a waistcoat like that shown; some of the natives assisted the witness in capturing the prisoners, who had previously voluntarily given up the property produced.

Mr Mayne, J. P., Commissioner of Crown Lands, and a partial protector of the blacks, although not a regular appointed protector, which is a special appointment; when he went up to Liverpool Plains in February last, he found the district greatly disturbed in consequence of an outrage committed on two of Mr Cobb's men; had heard of the outrage on Mr Brown's men, but received no official report until the 23d March; witness succeeded in conciliating the blacks, and at the time the report was made by Mr Macdonald, between six and seven hundred of the tribe to which the prisoners belonged, were with him, six or seven of which had blankets; which was a suspicious circumstance, as none then had been issued in the district; the blankets, muskets, and pistols, were given up to the witness; the prisoners were captured a fortnight after the property was given up, which happened in consequence of witness not being able to mature his plans sooner; witness arrested the prisoners on the information of their own tribe who pointed them out as men who had committed the robbery, and on Mr Macdonald's deposition on which witness issued a warrant; witness was present when Tailor's deposition was taken before Mr Day, and the deposition was not read over to them, nor was there any interpreter sworn to communicate the nature of it to them, so that they might make a defence to the charge; witness thought that he had forwarded Mr Macdonald's deposition to the Attorney General before he issued the warrant; no communication was made with the prisoners, except through a black named Georgy, who interpreted between them.

This was the case for the prosecution.

Mr Windeyer objected that the information which laid the stealing in a dwelling-house to the value of £5, was not sustained by the evidence; the only articles sworn to being the muskets, which were below the value of £5.  He took the objection because it would effect the sentence on the prisoners, if convicted, which would be varied from fifteen years transportation to two years imprisonment, or seven years transportation; secondly, that it did not appear to be within the jurisdiction of the Court, it having been sworn to have occurred two hundred miles beyond the boundary of the Colony, which in the ordinary acceptation of the term must be beyond the jurisdiction of the Court.  It did not matter what the Court might be in possession of, and the evidence was in favour of the point, as the term had not been otherwise explained.  He also objected that there had been no proof to connect Sandy with the robbery, and he requested that the Court would discharge him at once, and allow of his being put into the witness box, which was in the discretion of the Court; he also contended that it was possible that the men had absconded, joined the marauders abroad in that part of the country, and that the property had come into the possession of the blacks in some other way; he also contended that there was no proof to whom the property belonged, as none of it had been sworn to as laid.

The Court overruled the objections taken by Mr Windeyer, and called on the prisoners for their defence.

The prisoners, through their interpreter stated that they received the muskets from two blacks named Annidilly and Wollorri, who also gave them the blankets.

Th[e] witness Taylor was recalled, and swore positively to the five prisoners being those he left at the hut when he went to the head station; the distance between the hut and the place wh[e]re the property was found by the policeman was eighty miles.

The prisoners had no witnesses to call, and at half-past four o'clock His Honor commenced summing up, impressively cautioning the jury against allowing any out-of-doors observations which might have reached their ears, to influence them in the cool consideration of the case -- which was simply that of robbery, unconnected with that of murder about which much had been said, and stated in evidence, from which it could scarcely be separated.

The jury retired for half an hour, and brought in a verdict of Guilty, with a recommendation to mercy, on the ground of their being unable to make any adequate defence, as they had no means of getting witnesses, or preparing for the trial in the usual way.

The prisoners were remanded for sentence.

The trial occupied from ten to six o'clock, and the Court was crowded all the day.

Notes

[1]  See also Australian, 30 May 1839, reporting the following: ``The Attorney-General said that, with respect to the five aboriginal natives, committed by Mr Mayne, he had not been able to procure an interpreter.  Mr Threlkeld had been down, but could not understand them.  A man had been found who could speak their language fluently, but who could not be obtained in time to try them this session, and he must apply to have them remanded.  He hoped in future that interpreters would be procured to attend every commissioner, and Mr McDonald who had just been appointed a commissioner, had great skill in the language.

``The Chief Justice said that, if these men were to be protected by the laws, it was just they should be amenable to them. - Remanded."

The Sydney Gazette, 1 June 1839 provided the following report of the same hearing:

``The Attorney General next applied in the case of Moody, and the other aboriginal blacks, who had been committed from Port Phillip to take their trial for sheep stealing.  He said there was not sufficient evidence against them, and he should have given an order for their discharge before, but he thought it would be better to wait until an opportunity for returning them to Port Phillip should present itself.  His Honor consented; he said in law they were already discharged, but, in fact, were only detained for the purpose of sending them down."

After reporting other cases, the Sydney Gazette continued on with a report of the preliminary proceedings in this case of R. v. Sandy as follows: ``The Attorney General said there were five Aboriginal natives committed by Mr. Mayne for murder.  It was intended that they should be tried for robbery and not murder, but a difficulty presented itself on account of their language not being understood by Mr. Threlkeld and Mr. McDondald, but means would be taken to get an interpreter.  The Attorney General said that he hoped the Government would take measures in future that every commissioner may be attended by an interviewer."

[2]  John Hubert Plunkett.

[3]  See also Sydney Gazette, 22 August 1839.

[4] This version is supplied for the greater detail it gives, while the Sydney Herald gave a better account of the Chief Justice's summing up. For editorial comment, taking the usual anti-Aboriginal line of  that paper, see Sydney Herald, 23 September 1839.

Published by the Division of Law, Macquarie University