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

R. v. Dundalli [1854] NSWSupCMB 9

Aboriginal defendant - murder

Supreme Court of New South Wales, Moreton Bay

Therry J., 20 November 1854

Source: Moreton Bay Courier, 25 November 1854, p. 2

Dundalli, an aboriginal native, was indicted for the wilful murder of William Boller, at the Pine River, in the month of September, 1847. Mr. Faucett appeared for the defence.

The circumstances out of which this trial arose have been so very frequently before the public in this journal, that a brief digest of the evidence will be sufficient on the present occasion.

James Smith deposed that in the latter part of the year 1847 he was sawing in a scrub at the Pine River, the deceased William Boller holding the top of the saw, and witness being in the pit, when the top sawyer let go the saw, and on looking up, witness saw a number of blacks around the pit. Boller was running away, and a black speared him. Witness tried to get out of the pit, when the prisoner Dundalli threw a waddy at him, and knocked him back. At length he got out, and called to the blacks to know why they were angry. Dundalli made some reply, and threw a spear at witness, which, however, missed him. Witness found Boller in the hut, wounded. With some difficulty he was got to the neighbouring station of Mr. Griffin, and thence removed to Brisbane hospital, where he died. Witness was quite confident of the identity of the prisoner, whom he had seen several times. Had seen him since at the Deception River, when he answered to the name of Dundalli, and called witness by the name of "Bunta", which the blacks usually called him. [During the examination of this witness in Court the prisoner frequently addressed him as "Bunta."]

John Griffin, settler, at the Pine River, deposed that he saw the deceased Boller on the day alluded to. He had several spears sticking in his body, and was staggering. Witness had him removed to the station, and rode towards Brisbane to give information, when he met the Police Magistrate and Doctor on the road. Boller was subsequently removed to the hospital. Witness had seen the prisoner Dundalli occasionally, and knew him particularly, as he was a strange black, and not belonging to the tribe about witness's station.

Dr. Caanan deposed to having attended the deceased, Boller, in company with the late Dr. Ballow. Deceased had several flesh wounds, but death was caused by inflammation resulting from a wound in the cavity of the abdomen. Death was the necessary result of this wound.

Mr. Faucett made an eloquent and powerful appeal to the jury on behalf of the prisoner, and closed his address with some strong comments upon the insufficiency and the mockery of the protection said to be thrown around the blacks by the British Government.

His Honour, in charging the jury, expressed his emphatic dissent from these sentiments of the learned counsel for the defence. The Government and the law, his Honour said, threw every practicable protection around the Aboriginal natives, and crimes committed against them by the whites were visited with certain punishment. His Honour then proceeded to comment carefully upon the evidence, and left the case to the jury, who, after retiring for about a quarter of an hour, found a verdict of Guilty. ...

Dundalli, the aboriginal native before convicted, was again indicted, for the wilful murder of Andrew Gregor, at the Caboolture River, in the month of October, 1846.

Before going into the case, Mr. Faucett, for the prisoner, called the attention of the Court of the fact that Dundalli was placed in the dock in irons, and moved for an order for the immediate removal of the shackles. Mr. Purefoy, for the Crown, admitted the correctness generally of the principle contended for, but submitted that this case was an exception, the prisoner being a savage of great strength and daring, and whom it was not considered safe to leave unshackled. Mr. Feeney, the keeper of the gaol, made affidavit to this effect, and also that the prisoner had already attempted to escape. His Honour, however, was proceeding to order that the irons should be taken off, when Mr. Faucett stated that, having established the point, he should not press it further. The matter then dropped, and the trial was proceeded with.

In this case, as in that of the other charge against this prisoner, all the evidence has been very frequently published.

Ralph William Barrow, a half-caste, deposed that he was in the service of Mr. Gregor when that gentleman was murdered. Knew the prisoner Dundalli. About eight years ago Mr. Gregor had sent the blacks out for some bark, which they brought in, and as Mr. Gregor was laying some sheets of bark straight, the prisoner, who was amongst the party, struck him on the head with a waddy, and killed him. Witness was sitting on horseback at the time, as far off as from the Court House to the Post Office. This was on a Sunday. Saw Mrs. Shannon dead on the same day. Mrs. Shannon's husband went off to inform Mr. Griffin, at the nearest station. Mr. Griffin came to the station in the evening. Knew the prisoner, who was in the habit of coming about the place. On cross-examination by Mr. Faucett, the witness showed by his answers that he had no idea of how long ago this event occurred. He also said that he did not know the names of any other blacks present.

William Mason deposed that he had a station on the Pine River, about eight miles from Mr. Gregor's, in 1846. He knew the prisoner by sight, but not by name. Had seen him frequently from 1845 to 1848. Went over to Mr. Gregor's station after the murder. The body of Mr. Gregor was bleeding from the eye or temple, and the brains protruded. The right eye was knocked out. The hut appeared to have been ransacked, and tracks of bare feet were visible about. Witness saw the body interred.

John Griffin, who lived near Mr. Gregor's station, gave similar testimony to that of the last witness, and recognised the prisoner as Dundalli, whom he had seen about the neighbourhood in 1846. A person accustomed to the blacks could distinguish one from the other, though not with the same facility as in the case of whites.

Mr. Mason, being recalled by the Judge, stated that he had seen the prisoner from six months before the murder of Mr. Gregor. Frequently saw prisoner when depredations were committed on his (witness's) cattle.

Mr. Faucett addressed the jury for the defence, commenting particularly on discrepancies between the evidence of Barrow on this and on former trials, and called

J. C. Wickham, Government Resident, who deposed that at the time of the murder he received the deposition of Barrow, who then gave the names of several other blacks, as having been present. This witness also remembered an aboriginal named "Mickey" being tried for the murder of Mrs. Shannon, which took place at the same time as that of Mr. Gregor.

His Honour summed up with great care, commenting upon the difficulties which always surrounded cases of this kind, and observing, with reference to discrepancies in Barrow's testimony, that from first to last he had maintained that Dundalli had struck the blow which killed Mr. Gregor.

The jury, after retiring for a few minutes, returned with a verdict of Guilty.

The judgment of the Court was then prayed upon the prisoner for the murder of William Buller, of which he was before convicted, and his Honour passed sentence of death in the usual form. Judgment being prayed for the murder of Mr. Gregor, sentence of death was passed upon the prisoner for that crime also.

Published by the Division of Law, Macquarie University