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

R. v. Tallboy [1840] NSWSupC 44

Aboriginal defendant, Myall Creek, Namoi River, Cassilis, murder, felony murder

Supreme Court of New South Wales

Stephen J., 12 August 1840

Source: Sydney Herald, 12 August 1840[1]

Tallboy, alias Jackey, an aboriginal native, was placed in dock, and an interpreter, named William Jones, sworn, who deposed that he had lived at Mr James Walker's station, at the Myall Creek, district of Cassilis, beyond the Wurrambungi Mountains, where he had become acquainted with the prisoner, who could converse in four different languages, with one of which the interpreter was acquainted, and could make himself understood through it, by the prisoner.  The indictment was then read, which charged the prisoner with having, on the 19th June, 1837, at Narang, on the Namoi, in Cassilis, murdered one Frederick Harrington, a stockkeeper in the employ of the late Rev. S. Marsden, by inflicting several deadly wounds on his head, by striking him with a tomahawk.  Another count charged him with having been present at the said murder, and aiding and abetting others in the perpetration of it, with a blunt instrument unknown to the Attorney General.  The indictment having been read, and explained to the prisoner, he informed the Court - through the interpreter - that he did not do the deed, but that it was done by two other black-fellows, when he (the prisoner), was at Wang, and that the two black-fellows who did it were since dead.  The interpreter stated, that Wang was about fifteen miles from Narang.  The Court then enquired if the prisoner understood that he must plead either guilty or not guilty; when the interpreter said, he denied that he had done it, for it was done by two other black fellows when he was near Murramong, which is about ten miles from Narang, and five miles from Wang.  The prisoner was then told, that the Jury who were then in the box, were the persons who were to try him, and as they were sworn, he might object to them; he was also informed that the counsel, Mr. Callaghan, would speak for him, as he was alone; on which the prisoner appeared to be satisfied.

In opening the case to the jury Mr. Therry stated, that the present was only one of many outrages that had been committed on the whites by the aborigines in that distant part of the colony, and that it was necessary for the safety of society, that the aboriginies[sic] should be made responsible to the laws for such improper acts of outrage as they were guilty of; it was a well-know fact that not only the property of the settlers in the distant parts of the colony had been assailed by them, carried of[sic], and wantonly destroyed, but a number of whites had from time to time fallen victims to the savage fury of the blacks.  It was only twelve months since, not less than seven white men had been tried for, convicted, and executed for having been concerned in an outrage on the blacks, and that too, in what in his opinion, was less direct evidence than that which he was about to offer.  He had to lament that after all the pains that had been taken to obtain the testimony of the hut-keeper who, it was alleged, had been present at the outrage, the officers for the Crown had not been able to discover him, but then the evidence which he had to present, although merely circumstantial, was, in his opinion, such as would fix the crime charged in the indictment.  It was true there was no coroner's inquest held on the body of deceased, but that was impossible in the distant part of the Colony where the transaction took place: he had also to caution the Jury against being led away by the popular error, that, it was not right in a Jury to convict on circumstantial evidence.  Were this the case it would hardly be possible to get a conviction against a single murderer in the colony, as it seldom happened that any one saw the blow struck; he also reminded the Jury of their duty to themselves, and their fellow colonists, as it was for the purpose of protecting their lives and property, that they were called on to give their time and their talents to the consideration of such cases as the present, and he trusted that they would carefully attend to, and weigh the whole of the evidence, both for and against the prisoner.

The first witness called was James Nobbs, Stockeeper.  In June 1837, he was in the employ of the Rev. Samuel Marsden, at his station, on the Namoi.  On the 17th of June, 1837, five or six aborigines came to the hut in which the witness, a hut-keeper named "Big Bill," and the deceased lodged, where the blacks received some food, &c. from the inmates; they continued hanging about the place till the third day after, when about nine in the morning, the witness, having to go several miles to another station, took the saddle and bridle down, and asked the deceased to go with him to where the horse was, and help him to get the horse ready; he left "Big Bill" and a black or two in the hut; after witness had got on the horse he rode off and the deceased returned in the direction of the hut; and the last time the witness saw him alive was when he was within a rod or two of the hut door.  The witness returned about two hours and a-half after, on horseback, and when he came in sight of the hut, he saw two or three black fellows at a fire, with a pan roasting some meat; when he was seen by them, one of the blacks at the fire went into the hut, and came out again, followed by two or three others, among whom was the prisoner, who had on an oppossum cloak.  The prisoner came up to within a yard of where the witness was sitting on the horse - he had his spear in his right hand; the other one was under his cloak, which happening to open, and the witness saw the back of the hand under the cloak; it was covered with blood, and in it he held a pistol belonging to the witness, which he had left in the hut about two hours and a-half previously.  The witness immediately suspected that something was wrong, and the prisoner, observing him looking at his left hand, immediately stepped back about a yard, and suddenly wounded him in the right temple; he immediately spurred his horse and afterwards broke off the shaft of the spear, which was still sticking in his temple.  He got to another station, to which "Big Bill," the hut-keeper, had got before him; but although they had arms there, they had no ammunition.  He then proceeded to another station, where the witness was obliged to remain, from weakness caused by loss of blood, and also to get the wound dressed.  On the following day, a party having been collected, they repaired to the hut where the outrage had been committed, and found the deceased lying dead and covered with blood; and, on examining his head, they discovered four or five wounds which had apparently been inflicted with some sort of a blunt instrument, such as a tomahawk which had been in the hut up till that day.  On examining the wounds, they appeared clean cuts, and very severe, one of them having gone right through the skull; they also found that all the rations, clothing, and, in fact, whatever was moveable, had been carried off, but none of the blacks were to be seen.  This witness recollected, distinctly, the prisoner being among the blacks on the morning in question, as before he mounted, he asked him to take the others with him, and each get him a sheet of bark, which he promised to do.  They buried Harrington on the same day that they discovered his remains, and he had never seen the prisoner from the 19th of June, 1837, until about six months ago, when he was called on to identify him at Cassilis.  The prisoner remarked when the testimony of this witness was being interpreted respecting his hand being bloody; that the witness told a lie; he also said respecting his being employed to get the bark, that he then went off to get it.  The witness said that there were two others among the blacks, particularly Goodmorning and Chattie, but he had never seen them since.

            John Millar, a stockman, who resided about thirty miles from where the murder took place, deposed that on the day after, the prisoner and five or six other blacks came to his place, when he saw the prisoner with a clasp knife in his hair[sic], which he immediately recognised as being the property of the deceased, he having frequently seen him with it, and the last time, only a few days previous to his being murdered; another of the blacks, named Millbellow, was also dressed in a pair of trowsers and a jacket, which he recognised as being the clothing of Nobbs, the preceding witness; he also recollected Goodmorning being among the others; he suspected what they had been after, and for his own safety, got away from them as soon as possible, and heard nothing of any of them since; and it was only in February that he again saw the prisoner; he was then in custody of the police at Cassilis, when the witness identified him; he knew him perfectly well, as he had before then frequently visited and stopped at the station on which the prisoner was; they used to speak together; the prisoner not being altogether ignorant of the terms used in the English language, the way in which they conversed, was in broken English.

            Mr. Callaghan, through the interpreter, cautioned the prisoner as to saying anything when called on for his defence, to which he replied that he would be still; he was next asked if he would like any one to speak for him, when he stated he did not want any one to speak for him.  Mr. Callaghan said he would respectfully submit that there was a variance between the mode alledged in the information, in which the murder had been committed, and that proved by the witness.  For ought that had appeared, it might be that the deceased died a natural death, and the wound sinflicted [sic] after death, or it might have been, that the deceased was murdered by another tribe, and, therefore, as the case had not been proved against the prisoner he was entitled to the benefit of the doubt.  His Honor said he would take a note of the objection, should Mr. Callaghan deem it necessary at a future period to bring it before the court.  He also remarked, that as the prisoner had declined saying anything in his behalf, he thought the safe plan for Mr. Callaghan to pursue in regard to his client, was to leave the evidence as it at present stood, to the jury.

            Mr. Therry said if Mr. Callaghan made any observations on the case, he should for the prosecution, claim the right of reply, on which the prisoner's counsel said, he would not press the matter.

            His Honor then summed up and complimented the counsel on both sides for the way in which they had conducted the case, at the same time he considered it his duty to caution the jury against being led away by anything that had fallen from Mr. Therry about seven white men having been executed for an outrage, of which it had been stated they had been guilty against the blacks.  If such had been the case he had no doubt but that the parties who had suffered had been properly convicted - there was but one law for the black man as well as the white, and he considered it as much for the benefit of the blacks as for the whites that the laws should be strictly enforced in punishing them, when guilty of outrages against the white portion of the inhabitants - as, unless this were done, it might be that the sufferers would, by not knowing that justice was done, become influenced by the spirit of revenge, and thus go on from crime to crime.  He then briefly went over the principal points of the evidence, and left it to the jury to find whether the deceased had come by his death in consequence of the wounds described on his head; it was not necessary for the jury to find that the wounds had been inflicted by any particular instrument, as a murder might be committed as well by a stick, as by an axe or a tomahawk. - He also left it to the Jury to find whether the deceased had not been murdered by the prisoner, he having been seen shortly after with blood on his hand, and also with three deadly weapons in his hands; and what he had been engaged in might, to a certain extent, be inferred from the attack which he made on Nobbs, after his return.  The Jury were also instructed, that if the deceased came to his death by the prisoner or any of those with him when they were about to perpetrate an unlawful act, still, although they had not originally designed to go the length of committing murder, yet, in the eye of the law, the taking away of human life in such circumstances, amounted to murder.  He also stated, that it was the province of the jury to find whether or not the prisoner had struck the blows, or any of them, and also whether they had been struck in his presence.

            The Jury retired for about half an hour, and returned a verdict of not guilty on the first count, but guilty of the second count, which charged him with being present aiding and abetting.

His Honor desired the prisoner to be remanded until he should consult with the other judges, as to whether sentence of death should be passed on the prisoner, or merely sentence of death be recorded;[2]as, in either case, it would depend upon the representations that might subsequently be made to the Governor, whether the prisoner's life was spared or not.

            The crown prosecutor said, the prisoner would again be put on his trial for attempting to kill and murder the witness Nobbs, if sentence of death was not passed on him, when His Honor ordered him to be brought up to day.  The Court then adjourned till to-day, when there are but two cases ready for trial.

Stephen J., 12 August 1840

Source: Sydney Herald, 14 August 1840

Tallboy alias Jackey, who had been convicted on the preceding day of having been present on the 9th of June, 1837, aiding and abetting in the murder of Frederick Harrington at Narang, and against whom there is another charge of attempting to murder James Nobbs, at the same place, on the same day, by spearing him in the right temple, was brought up to receive sentence when his Honor addressed him as follows:-

            "Prisoner! you have been found guilty of the crime of murder - of assisting in taking the life of a fellow creature, not only without excuse, but apparently without provocation.  Of your guilt I entertain, in my own mind, as strong a persuasion as did the jury who tried you.  The only ground for doubt in your case has reference to a point of law.  Should the point to which I refer not eventually be removed it is probable that your life may yet be mercifully spared.  But, in the meantime, I earnestly warn you that you prepare yourself to die.  I trust, and I have no doubt every means will be taken to enlighten your mind, and to lead you to repent and make your peace with God.  If mercy in this world shall really be extended to you, yet the remainder of your days will be passed in a state of punishment.  This at least, considering the facts which appeared in evidence against you, is necessary as an example to others, and as a measure of protection to those who are exposed to similar attacks; for you and your countrymen may be assured of this, that whilst the law will sternly visit those who cruelly, or otherwise than in strict self defence, injure you, it will most severely punish as is just, every native who shall wantonly, or for plunder or other bad purposes, commit an outrage against the persons or property of the whites.  As often as any such case shall come before this court and be proved by testimony admitting of no reasonable doubt in the case of an European, an aboriginal inhabitant will most certainly be dealt with as the European would be.  The sentence of this court is, that you, Talboy [sic], alias Jackey, be taken to the place whence you came and from thence to such place of execution, at such time as the Governor shall appoint, there to be hanged by the neck until you are dead, and may God have mercy on your soul."

            This being interpreted to the prisoner, he remarked that he had been falsely accused, and that he was not present at the murder.  When that part of the Judge's address which said that the blacks would be punished as well as the whites was interpreted to him, he said that he did not know what it was that bit the black men to make them kill the whites.


[1]See also Australian, 13 August 1840: "Tall-boy, alias Jackey Jackey, an aboriginal native, was indicted for the murder of Frederick Haldane, in the year 1837.  A second count charged him as accessory to the fact.  The prisoner pleaded not guilty, through a sworn interpreter, and Mr Callaghan, at the request of the court, undertook his defence.  He was found guilty on the second count, and remanded for sentence."

This was one of the precipitating events in what Roger Milliss calls the Australia Day Massacre of Aborigines at Waterloo Creek, by a military party.  See R. Milliss,Waterloo Creek: The Australia Day Massacre of 1838, George Gipps and the British Conquest of New South Wales, McPhee Gribble, Ringwood, 1992, chap. 6.

The Sydney Herald, 20 May, 1840 also noted the following concerning three Aborigines: "Three Aborigines, who had been committed by Mr. Bingham for slaughtering cattle, but against whom there was not sufficient evidence to carry a conviction, were, on the suggestion of the Attorney-General, recommended by His Honor to be admitted to the Benevolent Asylum till they could be returned to their tribe in the district of Yass, they having been in custody since last January.

[2] Death recorded meant a formal sentence of death, without an intention that the sentence would be carried out.  Under (1823) 4 Geo. IV c. 48, s. 1, except in cases of murder, the judge had considerable discretion where an offender was convicted of a felony punishable by death.  If the judge thought that the circumstances made the offender fit for the exercise of Royal mercy, then instead of sentencing the offender to death, he could order that judgment of death be recorded.  The effect was the same as if judgment of death had been ordered, and the offender reprieved (s. 2).

Published by the Division of Law, Macquarie University