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

R. v. Charlie, 1866

Aboriginal defendant, murder

Supreme Court of New South Wales

Stephen C.J., 22 January 1866

Source: Sydney Morning Herald, 31 January 1866, p 3

(Abridged from the Riverine Advertiser.)

BEFORE Sir Alfred Stephen

His Honour desired to offer his congratulations to the inhabitants of this, district on the Supreme Court now being opened here, they had now the privilege of assisting in all cases both civil and criminal, arising within the limits of the districts in which the circuits were erected, and no longer were compelled to resort, either as parties or witnesses. He must also congratulate the country generally on the establishment of the Deniliquin Court, as the experience of their Quarter Sessions had abundantly shown that in no portion of the country were the juries more enlightened or conscientious, or the public better disposed towards the administration and maintenance of justice and the suppression of crime. If it were becoming of a Judge to thank them, he should have much pleasure in doing so for the manifestation of feeling which so many exhibited on Saturday last. The custom of going to meet the Circuit Court Judges was a good old custom in England. It was not intended as an honour to the individual, but of respect to the law; and was of value as an indication of reverence to the law, and impressing a just idea of its value and its power on the minds of those who were disposed to resist or disregard its sanctions. He was taken by surprise at the reception, and was greatly gratified on finding that the usage had been revived at Deniliquin, and it added to the pleasure he had felt in being the first Supreme Court Judge that had come amongst them.

Mr. Butler, assisted by Mr. Williams, appeared for the Crown.

MURDER.

Charlie, an aboriginal of Wentworth, was charged with the murder of Richard Hickson, near Wentworth, on the 18th of November last.

Mr. Blake, assisted by Mr. W.M. Miller, was assigned for the defence Francis Kerridge, mounted constable, stationed at Wentworth, deposed to seeing the body of Richard Hickson on the banks of the Murray near Wentworth. From information received, made a search and saw two tracks going down into tho river - one was of naked foot, and the other of a shoe and a sock; from the shape of the impress caused by the naked foot behind, they were those of a black; followed the tracks back about fifty yards, and saw that a scuffle had there taken place; arrested prisoner on suspicion of murder, and put him in the lock-up; found prisoner quite alone in a tent, about a quarter of a mile off where he saw the tracks; searched along the banks and found the tracks of naked feet as if coming from the water, but could not find any other tracks; found the tracks of two people going into the river, but only of one returning; the body of Hickson was found three days afterwards; there were marks on its throat as of a thumb and fingers, the nose was broken, and there was a wound at the back of the head about three inches long; this wound had the appearance of being inflicted with a heavy blunt instrument.

To Mr. Blake: There was no log where the tracks entered the water; the tracks were about a yard apart; the black track came out of the water about ten yards higher up.

Re-examined: Saw the tracks go into the water about a yard.

To Mr. Blake: Knew Hickson when he was alive, and believed the body found was his, but could not positively swear it.

Sergeant George Carter deposed that he last saw Hickson alive on the 18th November, at Gunn's Hotel, Wentworth; saw Hickson's body taken out of the river three days afterwards; on the evening of the 18th saw deceased talking to a black gin, named Kitty; told her to go to camp, and she then went off towards it; from information received searched the river bank for tracks; saw tracks, apparently of a white man and a black; the white man's trucks showed as if the man had on a slipper on one foot and a sock on the other; traced those tracks more than a yard into the river; found the track of the native coming out; there was a log near where the tracks went into the water; saw the body when found; the nose was broken; there were finger and thumb marks on the throat, and two injuries on the back of the head; did not think the skull was broken; took a little bit of stick and tried the skull to see if it was broken.

To his Honor: Fifty yards back from the river, where there was scuffling. There were several marks of different feet.

Examination continued: From that place to the river there were only the two tracks; on the 22nd November went into the cell where prisoner was confined; told him of the body being found, and cautioned him that if he said anything it would be used against him at his trial. [Witness read the following notes taken at the time:- "He (prisoner), Johnny, Bobby, Fred, Duncan, and David, on the Saturday night previous, below Mr. Ross's house at Boxer's Camp, that Richard Hickson came up to them and asked where was Kitty. Charlie said, "I do not know," and then Hickson growled; he (Charlie) then struck him with his fist; they both fought; the other blacks then separated them; Charlie then got a waddy, and returned and struck Hickson with a stick twice; Hickson ran to the water and swam away; Charlie did not go after him into the water; he never went into the water at all."]

To Mr. Blake: The two tracks going into the water were about five yards apart; the native track coming out was about twenty yards higher up.

Constable Kerridge recalled: The tracks were about a yard apart; they could not have been five yards apart.

George Carter to Mr. Blake: The tracks appeared to be as those of persons running.

Robert Verleigh deposed he was a labourer residing at Wentworth; on Saturday night, the 18th November, he heard a row amongst the blacks near the river; heard the blacks say "white fellow come up;" heard nothing more.

To Mr. Blake: Heard only one voice say "white fellow come up," but there appeared to be a general row amongst them.

John Gunn deposed: He was a barman residing at Wentworth; saw Hickson between 11 and 12 o'clock on the 18th November, at his brother's public-house; saw a body afterwards he believed to be that of Hickson.

Kerridge recalled: When deceased was taken out of the river there was a sock and slipper on one foot and a sock only on the other.

John Gunn continued: The slipper corresponded to those worn by deceased when he was at Gunn's hotel.

Frederick, an aboriginal, having satisfied his Honor that he understood the nature of an oath, was sworn, and deposed that he saw Richard Hickson on a Saturday evening, about 6 o'clock, at the public-house; did not see him talking to a lubra named Kitty. [Witness was here told to tell his own story, and spoke as follows.] " The blacks with prisoner came to Boxer's place, and we had some drink with us, and we saw Hickson come to us, and he say to Bobby where Kitty was? Bobby said I do not know; Charlie came up and asked whitefellow what you want with Kitty? and Charlie fought with him with his fists; and we stopped them from fighting, and after a little while we begin talking among ourselves; Charlie got up and frightened the white man down the bank ; he frightened him with a waddy; he ran behind him, and I heard some blows struck twice; they were then on the bank; the blows, I suppose, were with the waddy, and we saw Charlie coming up from the bank; Charlie had nothing in his hand, and Charlie came up and said whitefellow drowned, so we ran down; this was about ten or twelve, and we stooped down and saw no one in the water; we came up on high bank and caught Charlie there; we gave him a good hammering; we tell him he had no business to drown whitefellow, and Charlie got up and he ran away; so we went up to camp and we met Charlie there, and we told the blacks that he had drowned a whitefellow, and Mat, a half-brother of Charlie, got up and gave him a good hammering, and he ran away again; and Charlie came back again and out Duncan's head open, and then ran away again;" when Charlie was down at the river with the whitefellow, he (witness) heard the blows, and two or three minutes after this Charlie came back ; did not see them in the river; did not know the stick produced.

To Mr. Blake: When whitefellow came up and asked for Kitty, Charlie came up and said What do you want with Kitty? none of the other blacks said anything except talk amongst themselves; whitefellow did not say what he wanted with Kitty; Charlie began fighting; could not say how long they fought; they fought five or six minutes with their hands, and the other blacks then stopped them; did not see Charlie with a waddy; supposed Charlie had a waddy from hearing the blows; we had all been drinking; Charlie was half drunk. He (witness) was drunk; got the drink at Piggott's, M'George's old place; Duncan, the boy, got the money from Colonel Russell, be- cause he had worked for him; Hickson's track in the water was two or three yards from Charlie's track; took the stick produced out of the water; thought it had been there a long time - more than a week or a month.

Bobby, an aboriginal, was duly sworn, and deposed that he remembered the night Hickson came down and asked for Kitty; Kitty was Tinker's gin, not Charlie's; Charlie had nothing to do with her. Charlie hit him with his hand, and they fought, and then they went a little way off and Charlie began fighting again, as Hickson again asked for Kitty; Charlie ran to the camp, and Hickson asked Charlie for Kitty, and Charlie hit Hickson with a waddy on the back of the head; the two men were then about eight feet from the river; Hickson was frightened, and ran into the river; Charlie went round him and hit Hickson with the waddy when he was in the water; heard Hickson sing out twice; heard the two blows; Charlie came out and did not see Hickson again; Charlie said Hickson drowned; Witness said, What did not [sic] drown the man like that for? and Charlie said, Well Johnny struck Charlie because he drowned Hickson.

To Mr. Blake: Did not see Charlie and Hickson in the water - it was very dark; heard the blows; saw something in Charlie's hand; Charlie ran back to camp to got some waddy; Kitty was there at the time and she to Johnson's place; Johnson lived with kitty; Johnson was a working man, a whitefellow; they were drinking gin; he (witness) was half drunk; there were six blacks and Charlie; he (witness) was within two feet of the river. To the jury: Was standing on the bank; Charlie and Hickson were in the river as far as the corner of the Court -house from witness.

David, a boy about eleven or twelve years old, was also sworn, and very intelligently corroborated the foregoing evidence.

Mr. Blake, in addressing the jury, directed their attention to their being no direct evidence of the prisoner having caused the death of Hickson, and under the direction of his Honor explained the difference between manslaughter and murder.

His Honor very fully criticised the evidence, explaining that witnesses never exactly agreed in their description of a fact, and the variations in the testimony given did not therefore imply that it was false. It appeared to him satisfactory - but it was for the jury to say whether they considered it substantiated prisoner's guilt, and whether that guilt amounted to manslaughter or murder. He would state that if a verdict of guilty of murder were returned it would be for the Executive, acting on his report, to say whether the extreme penalty of the law should be carried out, but he hoped they would allow no consideration of whether the penalty of death would ensue or not to influence them in their verdict. With regard to the object that deceased had in visiting the camp, it apparently was for a criminal purpose. He would not say it was absolutely illegal, though the Vagrant Act imposed a penalty for white people going about with, or living with the blacks; still the evidence showed that here a white man wanted to have criminal intercourse with a black woman. In connection with this we had to consider what the feelings of white people would be if black men attempted such on white women. We had a right to suppose that feelings of indignation would be aroused in a black man under such circumstances. Similar cases had occurred where murder s, and very much ill-feeling and ill-will had arisen through the illicit intercourse of the white men with the black women. Sometimes this was avenged by the blacks on the white women - and if we wished to avoid this we should not give the blacks the chance of following our example. His Honor stated the difference between murder and manslaughter - the right of a husband to protect, even to the death, the honour of his wife - pointed out the different views that might be taken of the case, and the varying bearings of the evidence.

The jury retired, and after an absence of forty minutes, returned into Court with a verdict of guilty of wilful murder.

Sentence of death was recorded.

Published by the Division of Law, Macquarie University