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

R. v. Bolden

Aborigines, attacks on - Port Phillip District - criminal procedure - attempted murder - shooting with intent to kill - bail, limits on magistrates' power to issue - bail, attempted murder charge - evidence, sworn testimony before the prisoner - criminal procedure, depositions - self -defence , defence of squatting run against Aborigines - squatting run, title to - Aborigines, right to be on squatting run - Aborigines, Protectors of - confession, admissibility of - evidence, confession - Aborigines, evidence of - Willis J., accusation of bias - bias, judicial - Aborigines, killings inter se - contempt of court, press coverage of trials - Willis J., clashes with counsel

Supreme Court of New South Wales

Willis J., 2 December, 1841

Source: Port Phillip Patriot , 6 December 1841[1]

            Before His Honor the Resident Judge, and the following Jury:- D.C. M'Arthur, (Foreman) D. M'Laughlan, James Malcolm, George Porter, Francis Nodin, Robert Omond, J.J. Peers, Lewis Pedranna, James Purves, John Manton, and J.H. Patterson.

            Mr. Barry having exercised his right of challenge, said, he had an application to make relative to the production of a correspondence, which had taken place between Mr. Seivewright and the Government, the reason he called for that correspondence was, because it was not privileged.

            Judge Willis thought there would be no difficulty, because the letter in question had been sent to him with the depositions, he always adopted the practice of the Judges in England in reading the depositions before he came into Court; as it had been mentioned as a material point of the case it could be read and all parties have the benefit of it.

            Sandford George Bolden , late of Layton, in the district of Port Phillip, settler, was indicted, for feloniously firing a pistol loaded with ball at an aboriginal native, named Talkier, with intent to kill, at Layton, on the 26th of November. The second count in the information charged the prisoner with firing the pistol with attempt to kill, which pistol was loaded with shot; and the third count charged him with committing the offence with a pistol loaded with destructive materials. The prisoner in a firm voice pleaded not guilty.

            The Crown Prosecutor then stated the case as follows:- Gentlemen of the Jury, the prisoner at the bar, he is a very respectable settler, is charged with shooting an aboriginal native with intent to murder. This prosecution has been instituted at the instance of the Assistant Protector for the district in which the prisoner resides. The warrant of committal was made out by the committing magistrate who subsequently admitted the prisoner to bail, to appear and take his trial for the offence at this present Criminal Sessions-

            Judge Willis. How could a magistrate receive bail for the appearance of a prisoner to take his trial on a charge of murder. No magistrate has the power to take bail on a charge of murder, but a judge has. I make this observation because gentlemen in the country holding the commission of the peace have not the same opportunity of becoming acquainted with the law as the magistrates in England . By the information it does not appear that the prisoner is charged with murder, for which offence if found guilty, his life would be forfeited. I can only repeat that magistrates should be very cautious how they take bail, particularly on such a serious charge.

            The Crown Prosecutor continued - Having made these preliminary observations, it will be my duty to state the facts of the case. On the 27th of October last, the prisoner with his brother Mr. Samuel Bolden, and two of his servants, named Peter Carney and William Kearnan, went into the bust to muster some cattle, having proceeded about two miles in the bush, they met three natives, a man, a woman, and a boy. The prisoner when he saw the natives, rashly in my opinion, took alarm at their appearance, and considered (whether right or wrong, I shall not say) that these aboriginal natives intended to commit some depredations on his cattle, and to that end ordered them to leave the run. The native it appeared did not instantly obey this order, but ran to an open flat which was close at hand, pursued by the prisoner, who was on horseback; the black finding the pursuit two (sic) hot for him, turned round and attempted to strike the prisoner with one of his weapons, in return, the prisoner fired a pistol at the native and wounded him in the stomach; the native then ran to a water hole close by and jumped into the water for protection as was supposed by the prisoner who did not understand the ways of the native very well; the prisoner then left his two men at the water hole with instructions to take the native into custody when he came out of the water, whilst the prisoner returned to his house for more ammunition. During the time the prisoner was absent, the native came out of the water, but the moment he saw the prisoner returning, he again took to the water hole, and while standing on a decayed tree in the water hole, the prisoner again fired at him and he fell into the water. Such, gentlemen, are the facts of the case which I shall bring before you, I have not embellished nor underrated the case, for the purpose of prejudicing the minds of the Jury, neither will I do so, as long as I have the honor to hold the situation which I now fill.

            The following witnesses were then called:-

            Peter Carney sworn and examined by the Crown Prosecutor. I reside with the prisoner, I am in his service in the capacity of stockman. I remember the 27th October, I saw the prisoner that day, I went with him, and William Kearnan and Samuel Bolden to muster the cattle, I did not see any aboriginals on the run until we had been a good while out, we all took separate roads, if any of us heard the whips crack we were to return. I heard the whips crack and returned; when I was coming I saw some blacks, when they saw me they parted; one man separated from a woman and a grown up boy, and ran onto the flat, the prisoner was on the flat at the time on horseback, the native rushed from the hill to the flat, and the prisoner called out gigo ; the black stood with his left foot foremost and fixed his eyes on the prisoner, at the same time he drew a heavy formidable weapon which would cut a horse's head off, he was standing near the prisoner, and made a stroke at him with the weapon, Mr. Bolden was quite passive, but slewed himself on the saddle and escaped the blow, and again called gigo to the black. I don't think the prisoner saw the native until he rushed down from the rising ground.

            Mr. Croke.- Did you ever swear that Mr. Bolden rushed towards the native.

            Mr. Barry contended that before the witness answered that question he must first say whether he swore that in the presence of the prisoner.

            Judge Willis agreed and examined the witness on that point, deciding that the depositions had been properly taken by the Court. I made my depositions before a magistrate, Mr. Seivewright, not before Capt. Webster; I was not sworn first in the presence of Capt. Webster. The prisoner to the best of my opinion was present at my first examination, I can't say whether Mr. Seivewright read over the depositions to me, but I think he did so to Mr. Bolden in my presence, and I put my mark to it; if the prisoner wished to have asked me any questions he should have done so.

            By the Crown Prosecutor.- The prisoner did not, previous to the blow being made at him by the native, make any rush at him with his horse, the native made a second blow, when I called out to the prisoner to "take care or the native would unhorse him," when the native repeated the second stroke, the prisoner reined his horse round to the left and fired a pistol at the native, I cannot say that he struck him, he was about three yards from him. The pistol was a double barrelled pistol; when it was fired the native stood and clapped his hand on his belly, grinned his teeth at the prisoner, called him a white -, and then ran about 100, or 150 yards to a water hole, the native was naked at the time, I saw no blood, I saw the native go into one water hole, come out and go into another. I did not see the pistol loaded that morning, it was a percussion lock. I saw smoke from the pistol, no wound or blood. The native stopped in the first water hole a quarter of an hour or twenty minutes; during the time the native was in the water hole he kept singing out " gigo , plenty more blacks; gigo after them." I think he meant for me to go after them. I cannot say Mr. Seivewright asked me one of these questions; when the native said so, the prisoner told me to keep him a prisoner until he returned, the prisoner then went away, he said he was going home, he had only the double barrelled pistol, he told me to keep the native a prisoner until he returned with more fire arms. In the prisoner's absence the other stockman, William Kearnan, came up, he had not been up long before the native came out of the water hole, he still had his hand on his belly, and ran into the other water hole, where he stopped for a short time, and then came out and struck at the stockman; I was holding the two horses when Kearnan went round to take the native as he came out of the water hole, and the native struck Kearnan on the temple and on the right elbow with a club, while they were falling I was singing out to Kearnan that the native was getting the best of him, and that he would not be able to take him, and he had better come to his horse; at this time the prisoner came up, I can't say whether he fell or jumped into the water hole, the native was standing on a stump when the prisoner rode up and fired at him. Mr. Bolden was about fifteen or twenty yards distant from the native when he fired, it was a good large water hole, the native was on the opposite side of it when the prisoner fired, it was as the native was going into the water, simultaneous. I saw smoke when the pistol was fired, the pistol was a short barrelled pistol, it was a little longer than the double barrelled pistol. After the shot was fired we immediately rode away.

            Judge Willis.- Do you know the native's name?

            Crown Prosecutor.- The Protector will be able to prove the name of the native.

Judge Willis.- Was he present at the time the shot was fired? where is the native? why is he not produced? he would be the best evidence in all cases of murder, the production of the body is always considered the best evidence.

Cross examined by Mr. Barry. - I did not see either the first or second pistol loaded, I cannot say whether the pistols were loaded with ball, Mr. Bolden was absent about a quarter of an hour; during has absence the native did not complain that he was hurt, when the native said there were other blacks on the run, Kearnan said to the prisoner, "for goodness sake go home for more fire arms to protect us, for this man says there is so many natives on the run." I never saw the native before that day. The boy had an axe, the woman had a basket full of bullock fat.

Mr. Croke. - I object to this mode of examination; there was nothing about bullocks mentioned in the examination in chief.

Judge Willis. - I wish all the truth to come out, and I have no hesitation in stating from the bench that if a person receives a licence from the government to occupy a run, and whether white or black comes on that run to commit a depredation on the party's property, he is fully authorized to use any lawful means in his power to protect it.

Mr. Croke. - Yes your Honor, but what right have they to turn a black off their run?

Judge Willis. - They have a right to turn either black or a white off. I will go further and say if the government take upon themselves to be the desvisors of the soil, the tenant has a warrant under the descisor, to occupy the land, and that descisor, Mr. Croke, is the Queen of England, your mistress, in whose name you are this day conducting the prosecutor.

Cross-examination continued.- The fat was not give to the woman, some cattle were missing; there had been some cattle stolen about a week before; when Mr. Bolden fired, he could have fired the second barrel, he was in a very inconvenient posture and did not take any aim; when the native had the contact with Kearnan I did not see his belly, his back was towards me, I saw his belly twice, I am quite sure the native that went into the water hole was the same man that the prisoner fired at the first time, the native went into the water, feet first; he must have seen the prisoner coming up when he went into the water hole, we did not wait to see him rise; had the prisoner wished to have shot him he could have done so by waiting until he rose to the surface, I cannot say whether the second shot took effect. This occurred on Wednesday, and my deposition was taken on the following Friday. I never gave my evidence under the impression that the native was killed.

By the Jury.- It is a common course to frighten the natives by snapping or presenting a pistol at them.

By the Court.- When the native struck at the prisoner he had three or four weapons about him.

William Kearnan, sworn - I am a stockman in the employ of the prisoner; on the 37th (sic) of October I was employed in getting in some cattle, I saw three aboriginal natives consisting of a man, a woman and a boy; I do not know the native's name, but I had seen them several times before; I sung out "gigo" and asked them where they were going to, they said to Mr. Seivewright's station, about eighteen miles distant through the bush, but about thirty miles by the road, I said they were not, but were looking for cattle; I did not attempt to drive them off the run; I considered the prisoner was within hearing; the blacks said "Mr. Seivewright said plent (sic) wygell-wygell you," meaning that I should be hung; in five minutes Carney came up, Mr. Bolden and his brother were on the flat, I sung out that the woman's bag was full of bullock or cow fat; during the time I was shewing the fat to Mr. S. Bolden the prisoner and the black had some words, I did not hear what the words were, being engaged with the woman; I turned round and saw the prisoner engaged with the native, the native trying to strike him with his club; I was about fifty yards distant; I did not see the prisoner endeavouring to ride down the black or galloping his horse; I heard a pistol shot, at the time I heard the shot fired the native was within four of five yards of the prisoner; I saw smoke when the pistol was fired; the black then ran as fast as he could to the water hole and went in legs foremost; I frequently looked round while examining the woman's bag because I expected a reinforcement of blacks; the native was nearer the water hole than the prisoner; I and prisoner went to the water hole, the native then sprang in and caught hold of a log singing out "plenty more blackfellows kimbarley directly;" I then asked the prisoner to go home for some more fire-arms; I have frequently seen the double barrelled pistol; Mr. Bolden then went home for some more fire-arms; I was trying to keep the blackfellow in the water or take him into custody until Mr. Bolden's return, I thought it my duty to do so; during the absence of the prisoner the native came out of the water hole, I let him out quietly, when I walked up to him and he struck at me with his club, I thought to get hold of it; the moment the native saw the prisoner coming up he rushed to the water hole, and just as he got in the prisoner fired the pistol; the first I heard of the prisoner's return was the report of a pistol; we were struggling at the time; the native struck me several blows with his club, once on my forehead, which bled, and several times on the arm; it was a weapon I never saw before, it was much heavier than a shelalagh; after that shot was fired we got on our horses and went on our business; I often saw the prisoner before.

Cross-examined.- I found the same native killing a beast on the 19th of the same month; I never met a party of blacks killing a beast without this native being amongst them; I always told my master I knew this man; I cannot swear whether there were either ball, shot, or slugs in the pistols; when Mr. Bolden returned and fired the second shot the black was in the act of attacking me.

C.W. Seivewright examined - I am one of the Assistant Protectors of the aborigines for the western district; I am also a magistrate of the territory; I know the prisoner, he lives about eighteen miles from my station; I took the depositions in this case, they were taken in the prisoner's presence and read over to him; he had an opportunity of asking questions and did so; I knew an aboriginal native named Talkier, he was one of the natives I had superintendence over; I have not seen him since the 29th of October; I have made several enquiries for him, among his own tribe in particular; I saw him about a fortnight before that time; I think it improbable that he is now wandering about; I searched for him twice; it is probable that he is still alive.

His Honor wished to know why depositions had been taken relative to a death when it had not been shewn that any death had occurred; he understood the commitment was for murder, he should like to see that commitment.

Mr. Croke.- Is it because a Justice commits a man for murder that I am to prosecute him for that charge? I will, however, send for the commitment.

Mr. Seivewright.- Your Honor, the commitment was made out for feloniously shooting.

Judge Willis.- Then why did you not send for the parties and alter the heading of the depositions? common prudence would have directed you to have done so.

Examination continued.- I saw the prisoner previous to the examinations of the witnesses against him; I went to his station, it was on the 28th of October, I saw him at his stock-yard and made myself known to him; I said I was sorry to hear that there had been a collision between some of his people and the natives; he said "No, no collision;" I replied "are you not aware of it?" he said "are the bodies found?" I said "I believe so;" this belief was from the report I obtained from an aboriginal boy, wholly a savage; Mr. Bolden then said "I have no hesitation in stating it was I who shot the native, but I assure you it was in self-defence, and it was my intention to have informed you of the circumstance as soon as I could." That was not said until I stated the bodies were found; he said the reason he had not sent was, because he was engaged in going over some cattle he had sold;   I observed that he was under considerable agitation and advised him to say nothing more until the morrow, when I would return and take it from him; my reason for doing so, was, that in his agitation he might inadvertently have made a statement in which he might have committed himself; I held out no inducement except that the body was found.

His Honor said he would reserve the point, whether a confession taken under such circumstances could be admitted in evidence, and commented very strongly on the conduct of Mr. Seivewright in the matter.

By the Court.- I was engaged in endeavouring to ascertain whether the story of the aboriginal boy was true; I traced, in company with six natives and a constable, to a water hole where there were tracks of horses, when one of the natives descried a boy on horseback; the natives who accompanied me threatened to kill him; in consequence of the danger of the boy I gave up the search.

Cross-examined.- I rested what I stated on the statement of the aboriginal boy; I heard that the person who was shot was named Talkier from the native boy; the prisoner said after making his voluntary confession, that had he known the bodies were not found he would not have made the statement; I did not state to the men on the examination that the bodies were found; I think Mr. Craig, Captain Webster, and prisoner's brother were present when he made the statement; I have been in charge as a Protector eleven months; the dialects are various amongst the tribes; I swear I put a right interpretation on what I heard from the boy, who was ten or eleven years old.

Judge Willis.- What! am I to understand that you ground your belief on the statement of a boy ten years of age, and that boy wholly a savage, and that you as a magistrate act on that assertion to bring such a serious charge as that against the prisoner.

Cross-examination continued.- The other body said to have been killed was that of a woman, but on enquiry I found she was alive;   I have not seen her; the same boy who told me that the man was dead told me also that the woman was dead;   I never told the prisoner of the fact; I told Mr. Croke.

Mr. Croke distinctly denied that he had ever made any such statement until he put the question to him, and that was the reason he had filed the present information, because it occurred to him that the man might still be alive.

Judge Willis.- You had plenty of opportunity to have communicated that fact to the prisoner or his friends, and I must say it is not the way a magistrate should do his duty.

Cross-examination continued.- After collision with the natives and the settlers, it is usual for the former to abscond for two or three weeks; I sent for the woman but she had not arrived when I left; she belongs to a tribe at a remote distance; I have searched for the native within the beat of his tribe; I never had the water hole dragged;   I put a stick in the hole but it was too deep; if any bodies were in the water they would have floated when decomposition had taken place; the prisoner and his friend offered every facility in investigating the affair.

Judge Willis.- Gentlemen, the reason that I sift the evidence in this case so closely is, because the prisoner at the bar is a brother of a neighbour of mine, and I intend to leave the case in your hands without a single comment from me, for it has been asserted and also published in one of the newspapers, that I have allowed private feelings to interfere in the administration of public justice. Such imputations I scorn, they are too contemptible to notice, and those observations recoil on the parties who wrote them. I could in the beginning of the case have stopped it, but I preferred letting it go before you on its merits, for I was anxious that a full investigation should take place, which I am happy to say has been the case this day.

This closed the case for the prosecution, and no evidence for the defence being adduced,

Mr. Barry then addressed the Court as follows:- May it please Your Honor and Gentlemen of the Jury, - when my eye first lighted on the paragraph published in a local newspaper the day before yesterday, to which I have already called the attention of the Court, I feared that I should have had to present myself to you to perform the most trying and important duty which devolves upon a human being; to defend a young man in the prime of life, struggling for his existence, and leaning on the casual support of a feeble advocate. But do not imagine, gentlemen, that I rise now under any such impression. Do not suppose that I address you overwhelmed with the hopeless difficulties of this case. Let it not be conceived that I mean to occupy your time by soliciting your indulgence for the inadequacy of my powers; or endeavour artfully to enlist your passions on the side of my client. No gentlemen, such is not the case but I rise with whatever of law, justice, and of the British constitution have been transplanted in this country of our adoption at my back, and standing in front of that powerful alliance I demand a verdict of acquittal. You have heard, gentlemen, the testimony of the last witness, one of the committing magistrates, who has declared that throughout the whole of this proceeding every possible facility has been afforded by the young gentleman himself who is arraigned at the bar, and by his relations, in aid of the investigation of this matter. You have also heard the evidence of the two servants of this gentleman, who have undergone a very rigid examination by the Crown Prosecutor, and who are in fact the only witnesses whose statements bear directly upon the question; and though it might perhaps, be apprehended that these men might be influenced by fears of the unfavourable result of this trial, or swayed by their attachment to an indulgent master, never, I sincerely believe, was a more candid, upright and honest narrative deposed to in a court of justice. The prosecution you must observer gentlemen has signally failed, for you have no evidence whatsoever to satisfy your minds that this pistol was loaded either with "ball, shot, or other destructive materials,: as laid in the different counts of the information; which it is absolutely necessary to prove. Nor has there been adduced any evidence to shew that the native named in the information as Talkier is the person whom the prisoner at the bar is charged with having fired at. To show you that this is requisite, I need only refer you to the case of Lord Cardigan lately decided in England which must be fresh in your recollection, and to which your attention has been already directed by the learned Judge. But, gentlemen, though these deficiencies in proof are of themselves fatal to the information, I do not rest the case solely on these grounds, but will insist upon it that this young gentleman was justified in the fullest extent in acting as he has done in discharging his first pistol in defence of his own life, and the second in defence of that of his servant. What then is the case? This young man with his brother, accompanied by two stockmen, were riding on the morning   of the 27th round their run, and in the progress of their ride they found three aboriginal natives, one of whom, a man, was well known to one of the stockmen as a most violent character, and identified by him as connected with divers acts of aggression upon the property of his master; another, a woman, was carrying in her basket a considerable portion of fat, which there was every reason to believe had been taken from a bullock killed on the run by the aborigines during the previous week. These people were desired to leave the spot, upon which the man exclaimed that "there were plenty more blackfellows down yonder," and invited the party to proceed in that direction. It appears that when they reached a small plain while the prisoner was sitting upon his horse he was attacked by this ferocious savage, armed with a weapon, which has been described to you as one which "would cut a horse's head of," he eluded the blow, and on a repetition of the assault, in accordance with the first principle of the law of nature, to protect himself he fired at the assailant, but in such a hasty manner, in a position so unfavorable for taking a cool and deliberate aim, that it is quite uncertain whether the man could have been hit. Then upon the earnest entreaty of the stockmen, one of whom begged him "for God's sake to return for some fire-arms for the protection of the party," the prisoner left his men and was absent for the space of about twenty minutes, during which time this native was engaged in a conflict with one of the witnesses, in the course of which he wounded him severely on the temple, and inflicted several blows on his arm and other parts of his body. At this moment the prisoner arrives; his horse is at a gallop; he sees the life of a confidential servant exposed; he sees him standing unharmed (sic) and attacked by an infuriated cannibal and at the distance of twenty yards, or more, for the distance is not accurately ascertained, he discharges a random shot, and without waiting to observe the effect he turned his horse and rode off at full speed to the support of his brother. Now, gentlemen, whatever uncertainty existed in the law in former time as to the right of a master to commit an assault in defence of his servant; though there was no doubt whatever as to a servant being justified in defending his master; it is now clearly the law of the land, speaking on the authority of Lord Mansfield, "that a master interfering when his servant is assaulted, is justifiable under the circumstances, as well as a servant interposing for his master, as it rests on the relation between master and servant." Let me beg of you, gentlemen of the Jury, to consider for one moment if this young man entertained the "willful and malicious intent" necessary to support this information; what could possibly have been more easy for him to do than on the first occasion, on the failure of the first discharge, to have ridden up to this aboriginal native and put a period to his existence by means of the second barrel which he held in reserve; or on his return with a further supply of fire-arms to have waited until the native rose to the surface, when he could have deliberately accomplished his murderous design. Nay more, to make sure of his victim, he might have had recourse to such means as were adopted on a subsequent occasion when the water hole was searched for the body.   But no, the whole transaction evinces the very contrary of such a disposition, and the hurried manner of acting, the small size of the weapons used, and the provocation on both occasions render it very doubtful whether the shots could have taken effect, and quite excuse and justify recourse having been had to such extremity. The evidence must be so well impressed upon your minds, gentlemen, that it is needless in me to occupy you any longer by a recapitulation of any portion of it. However wretched, indeed, will be the situation of the settlers, who are, Heaven knows at present sufficiently unprotected, if they defend their property, the lives of their servants and their own, at the risk of being exposed to the ignominy of a public accusation such as you behold this day. I will not dwell, gentlemen, on the anxiety of the relations and friends of this young gentleman, as to the result of this trial, but I confidently resign the case into your hands and ask for such a verdict as you can reconcile with your consciences, your country and your God.

Judge Willis, in putting the case to the Jury, said he should only occupy their attention a short time with his observations on this case; he would state now what he had stated in the early part of the day, that the prisoner at the bar was the brother of a neighbour of his, and although it had been stated that he allowed his private affections to interfere with the administration of public justice, he disclaimed having any feeling in this case more than he had in any other, and it was always his study to administer the same justice to the poor as to the rich man. If his (Judge Willis') brother were placed in that dock to be tried before him for any criminal offence, he solemnly declared he would deal with him in the same manner as he would with the greatest stranger. The case before the Jury was a very important one, but he had no doubt would meet with the attention it required at the hands of the Jury; he could have stopped the case at its commencement because he knew the information could not be supported in evidence; there was no proof that the aboriginal native that was shot at by the prisoner was named Talkier; the learned prosecutor having failed in proving that fact, the information must fall to the ground. But he (Judge Willis) preferred letting the charge got to the Jury on its merits, and he rejoiced that he had done so, and that the matter had been thoroughly investigated; although he, as Judge, was bound to take notice of all informalities that might benefit any prisoner that came before him, he had let the case go to the Jury, because there could not then remain a shadow of doubt on their minds as to the motives which actuated him thus to act, so that if any feelings existed in the minds of the Jury, that any prejudice on his part in favour of the prisoner, it could not prejudice the verdict they would find in the case; such a feeling instead of serving would operate much against the young man who was placed in so unfortunate a position. The case before the Jury was not of the same description as the matter which had recently been argued before the Court, he meant the case of Bonjon, in which case he had already stated his impression on the law of the case, which impression would be forwarded by his Excellency the Governor to the home authorities, it had been asserted that he had given a decision in that case; that statement was false, he had never decided on the matter, but he had given his opinion; and he was still of that opinion. This case however was widely different from the case of Bonjon, this was a case of aggression of the whites against the blacks; and in all cases of aggression of the whites against the blacks, or the blacks against the whites, the law of England prevails. He had on a former occasion alluded to the case of Kilmeister and others, who were tried and executed for the murder of several aboriginal natives, to show there could be no doubt about the law of the case, that point having been recorded as the laws of this colony, in letters of blood. In this case a paragraph had appeared in one of the local papers relative to this case, headed "charge of murder," he had already stated his opinion on publishing preliminary reports of cases, that paragraph might tend to affect the opinion of the public, but he was sure it could not have any effect on so respectable and intelligent a Jury; at the present indeed he regretted that paragraph had been published because it, in all probability, would reach the friends of the prisoner in England, before the matter could be cleared up, and thereby cause considerable uneasiness.   Reports although true, and in some measure a libel, but he had no doubt these reports had been published by the parties who were ignorant of the law of the matter, but he (Judge Willis) hoped from what he then stated, such reports would not be published in future; he rejoiced for the sake of the prisoner, that he had allowed this case to proceed, and its publication would be useful to the colony; the case before the court, solely depended upon secondary evidence, and that evidence had been communicated by a native boy, wholly a savage of ten years old;   what was there to prove that the aboriginal named in the information was the person shot at by Mr. Bolden, had ordinary exertion been used, by the committing magistrate, by going to the water hole, if the native who was shot at had been killed, decomposition would have taken place and the body have floated to the surface; he was bound to tell the jury there was no evidence against the prisoner. Had the Crown prosecutor indicted him for shooting at an aboriginal, name unknown, then something might have turned out, but there was nothing to identify the aboriginal named in the information with the one that was shot at by the prisoner; and for aught that appeared that man might be alive and well, for Mr. Seivewright has himself stated that the parties, after a collision with the whites, leave their usual haunts for a considerable time. His Honor here alluded to the case of Lord Cardigan for shooting at Captain Tucket, and observed, that the precedent before him was exactly similar to the present case; when the matter of identification was so essential, in his opinion the case was not made out against the prisoner; had a little common sense been observed in the matter it would have been a great deal better.

Mr. Croke thought there was sufficient evidence to support the information against the prisoner for shooting with intent to kill.

Judge Willis wished the learned Crown Prosecutor to shew what proof he had that the person named in the information was the party that was fired at by the prisoner; at the same time he must say that the Crown Prosecutor had only done his duty in bringing the matter before the Court, but the time of the public was not to be taken up with cases that could not be sustained, he must, under all the circumstances of the case, tell the jury that they were bound to find a verdict of acquittal, the prosecution having completely failed.

The Crown Prosecutor said, with such depositions, he would put a thousand such informations on the files of the Court.

Judge Willis.- Then I do not think you would be doing justice to the public; you have no right to occupy the time of the Court with informations that you cannot sustain.

The Crown Prosecutor said he did not think the public considered he occupied his time unnecessarily.

His Honor then concluded his charge to the Jury, remembering that there was no evidence against the prisoner and that they must acquit him.

The Jury without retiring pronounced a verdict of Not Guilty.

Mr. Manton, one of the jury, wished to state on behalf of himself and some of his fellow jurymen, that the prisoner left the Court without any imputation on his character.

Mr. D.C. M'Arthur, the Foreman, begged to tell his Honor that that was not the unanimous opinion of the jury.

Mr. Croke in addressing his Honor, said, that he considered a heavy charge had been laid at his door by his Honor for occupying the time of the Court on informations he could not sustain.

Judge Willis.- Is it justice to the public to do so? yet such has been the case on several occasions this session.

Mr. Croke.- I again repeat that I would on such evidence file an information to-morrow; is it because I have lost several cases this session form want of witnesses who have absconded or have not been in attendance that I am to be accused of occupying the time of the Court unnecessarily? I will use my discretion in putting such prisoners on their trials one the depositions which are sent to me by the magistrates as I conscientiously think I should do.

Judge Willis said if such was the determination of the Crown Prosecutor he should feel it his duty to represent his conduct to the proper quarter, and state that the public time and expense was unnecessarily taken up in trying cases he could not sustain.

Mr. Croke.- I again say, with great respect, by virtue of my office I will use my discretion as to what cases I bring before the Court.

Judge Willis.- Very well, then I will know what course to pursue.

The matter was then dropped,

(The Court adjourned until eleven o'clock on Saturday.)

Supreme Court of New South Wales

Willis J., 2 December, 1841

Source: Port Phillip Patriot , 6 December 1841[1] 

 

            Before His Honor the Resident Judge, and the following Jury:- D.C. M'Arthur, (Foreman) D. M'Laughlan, James Malcolm, George Porter, Francis Nodin, Robert Omond, J.J. Peers, Lewis Pedranna, James Purves, John Manton, and J.H. Patterson.

            Mr. Barry having exercised his right of challenge, said, he had an application to make relative to the production of a correspondence, which had taken place between Mr. Seivewright and the Government, the reason he called for that correspondence was, because it was not privileged.

            Judge Willis thought there would be no difficulty, because the letter in question had been sent to him with the depositions, he always adopted the practice of the Judges in England in reading the depositions before he came into Court; as it had been mentioned as a material point of the case it could be read and all parties have the benefit of it.

            Sandford George Bolden , late of Layton, in the district of Port Phillip, settler, was indicted, for feloniously firing a pistol loaded with ball at an aboriginal native, named Talkier, with intent to kill, at Layton, on the 26th of November. The second count in the information charged the prisoner with firing the pistol with attempt to kill, which pistol was loaded with shot; and the third count charged him with committing the offence with a pistol loaded with destructive materials. The prisoner in a firm voice pleaded not guilty.

            The Crown Prosecutor then stated the case as follows:- Gentlemen of the Jury, the prisoner at the bar, he is a very respectable settler, is charged with shooting an aboriginal native with intent to murder. This prosecution has been instituted at the instance of the Assistant Protector for the district in which the prisoner resides. The warrant of committal was made out by the committing magistrate who subsequently admitted the prisoner to bail, to appear and take his trial for the offence at this present Criminal Sessions-

            Judge Willis. How could a magistrate receive bail for the appearance of a prisoner to take his trial on a charge of murder. No magistrate has the power to take bail on a charge of murder, but a judge has. I make this observation because gentlemen in the country holding the commission of the peace have not the same opportunity of becoming acquainted with the law as the magistrates in England . By the information it does not appear that the prisoner is charged with murder, for which offence if found guilty, his life would be forfeited. I can only repeat that magistrates should be very cautious how they take bail, particularly on such a serious charge.

            The Crown Prosecutor continued - Having made these preliminary observations, it will be my duty to state the facts of the case. On the 27th of October last, the prisoner with his brother Mr. Samuel Bolden, and two of his servants, named Peter Carney and William Kearnan, went into the bust to muster some cattle, having proceeded about two miles in the bush, they met three natives, a man, a woman, and a boy. The prisoner when he saw the natives, rashly in my opinion, took alarm at their appearance, and considered (whether right or wrong, I shall not say) that these aboriginal natives intended to commit some depredations on his cattle, and to that end ordered them to leave the run. The native it appeared did not instantly obey this order, but ran to an open flat which was close at hand, pursued by the prisoner, who was on horseback; the black finding the pursuit two (sic) hot for him, turned round and attempted to strike the prisoner with one of his weapons, in return, the prisoner fired a pistol at the native and wounded him in the stomach; the native then ran to a water hole close by and jumped into the water for protection as was supposed by the prisoner who did not understand the ways of the native very well; the prisoner then left his two men at the water hole with instructions to take the native into custody when he came out of the water, whilst the prisoner returned to his house for more ammunition. During the time the prisoner was absent, the native came out of the water, but the moment he saw the prisoner returning, he again took to the water hole, and while standing on a decayed tree in the water hole, the prisoner again fired at him and he fell into the water. Such, gentlemen, are the facts of the case which I shall bring before you, I have not embellished nor underrated the case, for the purpose of prejudicing the minds of the Jury, neither will I do so, as long as I have the honor to hold the situation which I now fill.

            The following witnesses were then called:-

            Peter Carney sworn and examined by the Crown Prosecutor. I reside with the prisoner, I am in his service in the capacity of stockman. I remember the 27th October, I saw the prisoner that day, I went with him, and William Kearnan and Samuel Bolden to muster the cattle, I did not see any aboriginals on the run until we had been a good while out, we all took separate roads, if any of us heard the whips crack we were to return. I heard the whips crack and returned; when I was coming I saw some blacks, when they saw me they parted; one man separated from a woman and a grown up boy, and ran onto the flat, the prisoner was on the flat at the time on horseback, the native rushed from the hill to the flat, and the prisoner called out gigo ; the black stood with his left foot foremost and fixed his eyes on the prisoner, at the same time he drew a heavy formidable weapon which would cut a horse's head off, he was standing near the prisoner, and made a stroke at him with the weapon, Mr. Bolden was quite passive, but slewed himself on the saddle and escaped the blow, and again called gigo to the black. I don't think the prisoner saw the native until he rushed down from the rising ground.

            Mr. Croke.- Did you ever swear that Mr. Bolden rushed towards the native.

            Mr. Barry contended that before the witness answered that question he must first say whether he swore that in the presence of the prisoner.

            Judge Willis agreed and examined the witness on that point, deciding that the depositions had been properly taken by the Court. I made my depositions before a magistrate, Mr. Seivewright, not before Capt. Webster; I was not sworn first in the presence of Capt. Webster. The prisoner to the best of my opinion was present at my first examination, I can't say whether Mr. Seivewright read over the depositions to me, but I think he did so to Mr. Bolden in my presence, and I put my mark to it; if the prisoner wished to have asked me any questions he should have done so.

            By the Crown Prosecutor.- The prisoner did not, previous to the blow being made at him by the native, make any rush at him with his horse, the native made a second blow, when I called out to the prisoner to "take care or the native would unhorse him," when the native repeated the second stroke, the prisoner reined his horse round to the left and fired a pistol at the native, I cannot say that he struck him, he was about three yards from him. The pistol was a double barrelled pistol; when it was fired the native stood and clapped his hand on his belly, grinned his teeth at the prisoner, called him a white -, and then ran about 100, or 150 yards to a water hole, the native was naked at the time, I saw no blood, I saw the native go into one water hole, come out and go into another. I did not see the pistol loaded that morning, it was a percussion lock. I saw smoke from the pistol, no wound or blood. The native stopped in the first water hole a quarter of an hour or twenty minutes; during the time the native was in the water hole he kept singing out " gigo , plenty more blacks; gigo after them." I think he meant for me to go after them. I cannot say Mr. Seivewright asked me one of these questions; when the native said so, the prisoner told me to keep him a prisoner until he returned, the prisoner then went away, he said he was going home, he had only the double barrelled pistol, he told me to keep the native a prisoner until he returned with more fire arms. In the prisoner's absence the other stockman, William Kearnan, came up, he had not been up long before the native came out of the water hole, he still had his hand on his belly, and ran into the other water hole, where he stopped for a short time, and then came out and struck at the stockman; I was holding the two horses when Kearnan went round to take the native as he came out of the water hole, and the native struck Kearnan on the temple and on the right elbow with a club, while they were falling I was singing out to Kearnan that the native was getting the best of him, and that he would not be able to take him, and he had better come to his horse; at this time the prisoner came up, I can't say whether he fell or jumped into the water hole, the native was standing on a stump when the prisoner rode up and fired at him. Mr. Bolden was about fifteen or twenty yards distant from the native when he fired, it was a good large water hole, the native was on the opposite side of it when the prisoner fired, it was as the native was going into the water, simultaneous. I saw smoke when the pistol was fired, the pistol was a short barrelled pistol, it was a little longer than the double barrelled pistol. After the shot was fired we immediately rode away.

            Judge Willis.- Do you know the native's name?

            Crown Prosecutor.- The Protector will be able to prove the name of the native.

Judge Willis.- Was he present at the time the shot was fired? where is the native? why is he not produced? he would be the best evidence in all cases of murder, the production of the body is always considered the best evidence.

Cross examined by Mr. Barry. - I did not see either the first or second pistol loaded, I cannot say whether the pistols were loaded with ball, Mr. Bolden was absent about a quarter of an hour; during has absence the native did not complain that he was hurt, when the native said there were other blacks on the run, Kearnan said to the prisoner, "for goodness sake go home for more fire arms to protect us, for this man says there is so many natives on the run." I never saw the native before that day. The boy had an axe, the woman had a basket full of bullock fat.

Mr. Croke. - I object to this mode of examination; there was nothing about bullocks mentioned in the examination in chief.

Judge Willis. - I wish all the truth to come out, and I have no hesitation in stating from the bench that if a person receives a licence from the government to occupy a run, and whether white or black comes on that run to commit a depredation on the party's property, he is fully authorized to use any lawful means in his power to protect it.

Mr. Croke. - Yes your Honor, but what right have they to turn a black off their run?

Judge Willis. - They have a right to turn either black or a white off. I will go further and say if the government take upon themselves to be the desvisors of the soil, the tenant has a warrant under the descisor, to occupy the land, and that descisor, Mr. Croke, is the Queen of England, your mistress, in whose name you are this day conducting the prosecutor.

Cross-examination continued.- The fat was not give to the woman, some cattle were missing; there had been some cattle stolen about a week before; when Mr. Bolden fired, he could have fired the second barrel, he was in a very inconvenient posture and did not take any aim; when the native had the contact with Kearnan I did not see his belly, his back was towards me, I saw his belly twice, I am quite sure the native that went into the water hole was the same man that the prisoner fired at the first time, the native went into the water, feet first; he must have seen the prisoner coming up when he went into the water hole, we did not wait to see him rise; had the prisoner wished to have shot him he could have done so by waiting until he rose to the surface, I cannot say whether the second shot took effect. This occurred on Wednesday, and my deposition was taken on the following Friday. I never gave my evidence under the impression that the native was killed.

By the Jury.- It is a common course to frighten the natives by snapping or presenting a pistol at them.

By the Court.- When the native struck at the prisoner he had three or four weapons about him.

William Kearnan, sworn - I am a stockman in the employ of the prisoner; on the 37th (sic) of October I was employed in getting in some cattle, I saw three aboriginal natives consisting of a man, a woman and a boy; I do not know the native's name, but I had seen them several times before; I sung out "gigo" and asked them where they were going to, they said to Mr. Seivewright's station, about eighteen miles distant through the bush, but about thirty miles by the road, I said they were not, but were looking for cattle; I did not attempt to drive them off the run; I considered the prisoner was within hearing; the blacks said "Mr. Seivewright said plent (sic) wygell-wygell you," meaning that I should be hung; in five minutes Carney came up, Mr. Bolden and his brother were on the flat, I sung out that the woman's bag was full of bullock or cow fat; during the time I was shewing the fat to Mr. S. Bolden the prisoner and the black had some words, I did not hear what the words were, being engaged with the woman; I turned round and saw the prisoner engaged with the native, the native trying to strike him with his club; I was about fifty yards distant; I did not see the prisoner endeavouring to ride down the black or galloping his horse; I heard a pistol shot, at the time I heard the shot fired the native was within four of five yards of the prisoner; I saw smoke when the pistol was fired; the black then ran as fast as he could to the water hole and went in legs foremost; I frequently looked round while examining the woman's bag because I expected a reinforcement of blacks; the native was nearer the water hole than the prisoner; I and prisoner went to the water hole, the native then sprang in and caught hold of a log singing out "plenty more blackfellows kimbarley directly;" I then asked the prisoner to go home for some more fire-arms; I have frequently seen the double barrelled pistol; Mr. Bolden then went home for some more fire-arms; I was trying to keep the blackfellow in the water or take him into custody until Mr. Bolden's return, I thought it my duty to do so; during the absence of the prisoner the native came out of the water hole, I let him out quietly, when I walked up to him and he struck at me with his club, I thought to get hold of it; the moment the native saw the prisoner coming up he rushed to the water hole, and just as he got in the prisoner fired the pistol; the first I heard of the prisoner's return was the report of a pistol; we were struggling at the time; the native struck me several blows with his club, once on my forehead, which bled, and several times on the arm; it was a weapon I never saw before, it was much heavier than a shelalagh; after that shot was fired we got on our horses and went on our business; I often saw the prisoner before.

Cross-examined.- I found the same native killing a beast on the 19th of the same month; I never met a party of blacks killing a beast without this native being amongst them; I always told my master I knew this man; I cannot swear whether there were either ball, shot, or slugs in the pistols; when Mr. Bolden returned and fired the second shot the black was in the act of attacking me.

C.W. Seivewright examined - I am one of the Assistant Protectors of the aborigines for the western district; I am also a magistrate of the territory; I know the prisoner, he lives about eighteen miles from my station; I took the depositions in this case, they were taken in the prisoner's presence and read over to him; he had an opportunity of asking questions and did so; I knew an aboriginal native named Talkier, he was one of the natives I had superintendence over; I have not seen him since the 29th of October; I have made several enquiries for him, among his own tribe in particular; I saw him about a fortnight before that time; I think it improbable that he is now wandering about; I searched for him twice; it is probable that he is still alive.

His Honor wished to know why depositions had been taken relative to a death when it had not been shewn that any death had occurred; he understood the commitment was for murder, he should like to see that commitment.

Mr. Croke.- Is it because a Justice commits a man for murder that I am to prosecute him for that charge? I will, however, send for the commitment.

Mr. Seivewright.- Your Honor, the commitment was made out for feloniously shooting.

Judge Willis.- Then why did you not send for the parties and alter the heading of the depositions? common prudence would have directed you to have done so.

Examination continued.- I saw the prisoner previous to the examinations of the witnesses against him; I went to his station, it was on the 28th of October, I saw him at his stock-yard and made myself known to him; I said I was sorry to hear that there had been a collision between some of his people and the natives; he said "No, no collision;" I replied "are you not aware of it?" he said "are the bodies found?" I said "I believe so;" this belief was from the report I obtained from an aboriginal boy, wholly a savage; Mr. Bolden then said "I have no hesitation in stating it was I who shot the native, but I assure you it was in self-defence, and it was my intention to have informed you of the circumstance as soon as I could." That was not said until I stated the bodies were found; he said the reason he had not sent was, because he was engaged in going over some cattle he had sold;   I observed that he was under considerable agitation and advised him to say nothing more until the morrow, when I would return and take it from him; my reason for doing so, was, that in his agitation he might inadvertently have made a statement in which he might have committed himself; I held out no inducement except that the body was found.

His Honor said he would reserve the point, whether a confession taken under such circumstances could be admitted in evidence, and commented very strongly on the conduct of Mr. Seivewright in the matter.

By the Court.- I was engaged in endeavouring to ascertain whether the story of the aboriginal boy was true; I traced, in company with six natives and a constable, to a water hole where there were tracks of horses, when one of the natives descried a boy on horseback; the natives who accompanied me threatened to kill him; in consequence of the danger of the boy I gave up the search.

Cross-examined.- I rested what I stated on the statement of the aboriginal boy; I heard that the person who was shot was named Talkier from the native boy; the prisoner said after making his voluntary confession, that had he known the bodies were not found he would not have made the statement; I did not state to the men on the examination that the bodies were found; I think Mr. Craig, Captain Webster, and prisoner's brother were present when he made the statement; I have been in charge as a Protector eleven months; the dialects are various amongst the tribes; I swear I put a right interpretation on what I heard from the boy, who was ten or eleven years old.

Judge Willis.- What! am I to understand that you ground your belief on the statement of a boy ten years of age, and that boy wholly a savage, and that you as a magistrate act on that assertion to bring such a serious charge as that against the prisoner.

Cross-examination continued.- The other body said to have been killed was that of a woman, but on enquiry I found she was alive;   I have not seen her; the same boy who told me that the man was dead told me also that the woman was dead;   I never told the prisoner of the fact; I told Mr. Croke.

Mr. Croke distinctly denied that he had ever made any such statement until he put the question to him, and that was the reason he had filed the present information, because it occurred to him that the man might still be alive.

Judge Willis.- You had plenty of opportunity to have communicated that fact to the prisoner or his friends, and I must say it is not the way a magistrate should do his duty.

Cross-examination continued.- After collision with the natives and the settlers, it is usual for the former to abscond for two or three weeks; I sent for the woman but she had not arrived when I left; she belongs to a tribe at a remote distance; I have searched for the native within the beat of his tribe; I never had the water hole dragged;   I put a stick in the hole but it was too deep; if any bodies were in the water they would have floated when decomposition had taken place; the prisoner and his friend offered every facility in investigating the affair.

Judge Willis.- Gentlemen, the reason that I sift the evidence in this case so closely is, because the prisoner at the bar is a brother of a neighbour of mine, and I intend to leave the case in your hands without a single comment from me, for it has been asserted and also published in one of the newspapers, that I have allowed private feelings to interfere in the administration of public justice. Such imputations I scorn, they are too contemptible to notice, and those observations recoil on the parties who wrote them. I could in the beginning of the case have stopped it, but I preferred letting it go before you on its merits, for I was anxious that a full investigation should take place, which I am happy to say has been the case this day.

This closed the case for the prosecution, and no evidence for the defence being adduced,

Mr. Barry then addressed the Court as follows:- May it please Your Honor and Gentlemen of the Jury, - when my eye first lighted on the paragraph published in a local newspaper the day before yesterday, to which I have already called the attention of the Court, I feared that I should have had to present myself to you to perform the most trying and important duty which devolves upon a human being; to defend a young man in the prime of life, struggling for his existence, and leaning on the casual support of a feeble advocate. But do not imagine, gentlemen, that I rise now under any such impression. Do not suppose that I address you overwhelmed with the hopeless difficulties of this case. Let it not be conceived that I mean to occupy your time by soliciting your indulgence for the inadequacy of my powers; or endeavour artfully to enlist your passions on the side of my client. No gentlemen, such is not the case but I rise with whatever of law, justice, and of the British constitution have been transplanted in this country of our adoption at my back, and standing in front of that powerful alliance I demand a verdict of acquittal. You have heard, gentlemen, the testimony of the last witness, one of the committing magistrates, who has declared that throughout the whole of this proceeding every possible facility has been afforded by the young gentleman himself who is arraigned at the bar, and by his relations, in aid of the investigation of this matter. You have also heard the evidence of the two servants of this gentleman, who have undergone a very rigid examination by the Crown Prosecutor, and who are in fact the only witnesses whose statements bear directly upon the question; and though it might perhaps, be apprehended that these men might be influenced by fears of the unfavourable result of this trial, or swayed by their attachment to an indulgent master, never, I sincerely believe, was a more candid, upright and honest narrative deposed to in a court of justice. The prosecution you must observer gentlemen has signally failed, for you have no evidence whatsoever to satisfy your minds that this pistol was loaded either with "ball, shot, or other destructive materials,: as laid in the different counts of the information; which it is absolutely necessary to prove. Nor has there been adduced any evidence to shew that the native named in the information as Talkier is the person whom the prisoner at the bar is charged with having fired at. To show you that this is requisite, I need only refer you to the case of Lord Cardigan lately decided in England which must be fresh in your recollection, and to which your attention has been already directed by the learned Judge. But, gentlemen, though these deficiencies in proof are of themselves fatal to the information, I do not rest the case solely on these grounds, but will insist upon it that this young gentleman was justified in the fullest extent in acting as he has done in discharging his first pistol in defence of his own life, and the second in defence of that of his servant. What then is the case? This young man with his brother, accompanied by two stockmen, were riding on the morning   of the 27th round their run, and in the progress of their ride they found three aboriginal natives, one of whom, a man, was well known to one of the stockmen as a most violent character, and identified by him as connected with divers acts of aggression upon the property of his master; another, a woman, was carrying in her basket a considerable portion of fat, which there was every reason to believe had been taken from a bullock killed on the run by the aborigines during the previous week. These people were desired to leave the spot, upon which the man exclaimed that "there were plenty more blackfellows down yonder," and invited the party to proceed in that direction. It appears that when they reached a small plain while the prisoner was sitting upon his horse he was attacked by this ferocious savage, armed with a weapon, which has been described to you as one which "would cut a horse's head of," he eluded the blow, and on a repetition of the assault, in accordance with the first principle of the law of nature, to protect himself he fired at the assailant, but in such a hasty manner, in a position so unfavorable for taking a cool and deliberate aim, that it is quite uncertain whether the man could have been hit. Then upon the earnest entreaty of the stockmen, one of whom begged him "for God's sake to return for some fire-arms for the protection of the party," the prisoner left his men and was absent for the space of about twenty minutes, during which time this native was engaged in a conflict with one of the witnesses, in the course of which he wounded him severely on the temple, and inflicted several blows on his arm and other parts of his body. At this moment the prisoner arrives; his horse is at a gallop; he sees the life of a confidential servant exposed; he sees him standing unharmed (sic) and attacked by an infuriated cannibal and at the distance of twenty yards, or more, for the distance is not accurately ascertained, he discharges a random shot, and without waiting to observe the effect he turned his horse and rode off at full speed to the support of his brother. Now, gentlemen, whatever uncertainty existed in the law in former time as to the right of a master to commit an assault in defence of his servant; though there was no doubt whatever as to a servant being justified in defending his master; it is now clearly the law of the land, speaking on the authority of Lord Mansfield, "that a master interfering when his servant is assaulted, is justifiable under the circumstances, as well as a servant interposing for his master, as it rests on the relation between master and servant." Let me beg of you, gentlemen of the Jury, to consider for one moment if this young man entertained the "willful and malicious intent" necessary to support this information; what could possibly have been more easy for him to do than on the first occasion, on the failure of the first discharge, to have ridden up to this aboriginal native and put a period to his existence by means of the second barrel which he held in reserve; or on his return with a further supply of fire-arms to have waited until the native rose to the surface, when he could have deliberately accomplished his murderous design. Nay more, to make sure of his victim, he might have had recourse to such means as were adopted on a subsequent occasion when the water hole was searched for the body.   But no, the whole transaction evinces the very contrary of such a disposition, and the hurried manner of acting, the small size of the weapons used, and the provocation on both occasions render it very doubtful whether the shots could have taken effect, and quite excuse and justify recourse having been had to such extremity. The evidence must be so well impressed upon your minds, gentlemen, that it is needless in me to occupy you any longer by a recapitulation of any portion of it. However wretched, indeed, will be the situation of the settlers, who are, Heaven knows at present sufficiently unprotected, if they defend their property, the lives of their servants and their own, at the risk of being exposed to the ignominy of a public accusation such as you behold this day. I will not dwell, gentlemen, on the anxiety of the relations and friends of this young gentleman, as to the result of this trial, but I confidently resign the case into your hands and ask for such a verdict as you can reconcile with your consciences, your country and your God.

Judge Willis, in putting the case to the Jury, said he should only occupy their attention a short time with his observations on this case; he would state now what he had stated in the early part of the day, that the prisoner at the bar was the brother of a neighbour of his, and although it had been stated that he allowed his private affections to interfere with the administration of public justice, he disclaimed having any feeling in this case more than he had in any other, and it was always his study to administer the same justice to the poor as to the rich man. If his (Judge Willis') brother were placed in that dock to be tried before him for any criminal offence, he solemnly declared he would deal with him in the same manner as he would with the greatest stranger. The case before the Jury was a very important one, but he had no doubt would meet with the attention it required at the hands of the Jury; he could have stopped the case at its commencement because he knew the information could not be supported in evidence; there was no proof that the aboriginal native that was shot at by the prisoner was named Talkier; the learned prosecutor having failed in proving that fact, the information must fall to the ground. But he (Judge Willis) preferred letting the charge got to the Jury on its merits, and he rejoiced that he had done so, and that the matter had been thoroughly investigated; although he, as Judge, was bound to take notice of all informalities that might benefit any prisoner that came before him, he had let the case go to the Jury, because there could not then remain a shadow of doubt on their minds as to the motives which actuated him thus to act, so that if any feelings existed in the minds of the Jury, that any prejudice on his part in favour of the prisoner, it could not prejudice the verdict they would find in the case; such a feeling instead of serving would operate much against the young man who was placed in so unfortunate a position. The case before the Jury was not of the same description as the matter which had recently been argued before the Court, he meant the case of Bonjon, in which case he had already stated his impression on the law of the case, which impression would be forwarded by his Excellency the Governor to the home authorities, it had been asserted that he had given a decision in that case; that statement was false, he had never decided on the matter, but he had given his opinion; and he was still of that opinion. This case however was widely different from the case of Bonjon, this was a case of aggression of the whites against the blacks; and in all cases of aggression of the whites against the blacks, or the blacks against the whites, the law of England prevails. He had on a former occasion alluded to the case of Kilmeister and others, who were tried and executed for the murder of several aboriginal natives, to show there could be no doubt about the law of the case, that point having been recorded as the laws of this colony, in letters of blood. In this case a paragraph had appeared in one of the local papers relative to this case, headed "charge of murder," he had already stated his opinion on publishing preliminary reports of cases, that paragraph might tend to affect the opinion of the public, but he was sure it could not have any effect on so respectable and intelligent a Jury; at the present indeed he regretted that paragraph had been published because it, in all probability, would reach the friends of the prisoner in England, before the matter could be cleared up, and thereby cause considerable uneasiness.   Reports although true, and in some measure a libel, but he had no doubt these reports had been published by the parties who were ignorant of the law of the matter, but he (Judge Willis) hoped from what he then stated, such reports would not be published in future; he rejoiced for the sake of the prisoner, that he had allowed this case to proceed, and its publication would be useful to the colony; the case before the court, solely depended upon secondary evidence, and that evidence had been communicated by a native boy, wholly a savage of ten years old;   what was there to prove that the aboriginal named in the information was the person shot at by Mr. Bolden, had ordinary exertion been used, by the committing magistrate, by going to the water hole, if the native who was shot at had been killed, decomposition would have taken place and the body have floated to the surface; he was bound to tell the jury there was no evidence against the prisoner. Had the Crown prosecutor indicted him for shooting at an aboriginal, name unknown, then something might have turned out, but there was nothing to identify the aboriginal named in the information with the one that was shot at by the prisoner; and for aught that appeared that man might be alive and well, for Mr. Seivewright has himself stated that the parties, after a collision with the whites, leave their usual haunts for a considerable time. His Honor here alluded to the case of Lord Cardigan for shooting at Captain Tucket, and observed, that the precedent before him was exactly similar to the present case; when the matter of identification was so essential, in his opinion the case was not made out against the prisoner; had a little common sense been observed in the matter it would have been a great deal better.

Mr. Croke thought there was sufficient evidence to support the information against the prisoner for shooting with intent to kill.

Judge Willis wished the learned Crown Prosecutor to shew what proof he had that the person named in the information was the party that was fired at by the prisoner; at the same time he must say that the Crown Prosecutor had only done his duty in bringing the matter before the Court, but the time of the public was not to be taken up with cases that could not be sustained, he must, under all the circumstances of the case, tell the jury that they were bound to find a verdict of acquittal, the prosecution having completely failed.

The Crown Prosecutor said, with such depositions, he would put a thousand such informations on the files of the Court.

Judge Willis.- Then I do not think you would be doing justice to the public; you have no right to occupy the time of the Court with informations that you cannot sustain.

The Crown Prosecutor said he did not think the public considered he occupied his time unnecessarily.

His Honor then concluded his charge to the Jury, remembering that there was no evidence against the prisoner and that they must acquit him.

The Jury without retiring pronounced a verdict of Not Guilty.

Mr. Manton, one of the jury, wished to state on behalf of himself and some of his fellow jurymen, that the prisoner left the Court without any imputation on his character.

Mr. D.C. M'Arthur, the Foreman, begged to tell his Honor that that was not the unanimous opinion of the jury.

Mr. Croke in addressing his Honor, said, that he considered a heavy charge had been laid at his door by his Honor for occupying the time of the Court on informations he could not sustain.

Judge Willis.- Is it justice to the public to do so? yet such has been the case on several occasions this session.

Mr. Croke.- I again repeat that I would on such evidence file an information to-morrow; is it because I have lost several cases this session form want of witnesses who have absconded or have not been in attendance that I am to be accused of occupying the time of the Court unnecessarily? I will use my discretion in putting such prisoners on their trials one the depositions which are sent to me by the magistrates as I conscientiously think I should do.

Judge Willis said if such was the determination of the Crown Prosecutor he should feel it his duty to represent his conduct to the proper quarter, and state that the public time and expense was unnecessarily taken up in trying cases he could not sustain.

Mr. Croke.- I again say, with great respect, by virtue of my office I will use my discretion as to what cases I bring before the Court.

Judge Willis.- Very well, then I will know what course to pursue.

The matter was then dropped,

(The Court adjourned until eleven o'clock on Saturday.)

Note

[1] Thanks to Chris Brien for supplying the newspaper account of this case.

Published by the Division of Law, Macquarie University