Skip to Content

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

R. v. Hill [1843]

practice and procedure - habeas corpus - warrant of commitment, requirements of - Aborigines, killing of

Supreme Court of New South Wales, Port Phillip

Willis J, 24 June 1843

Jeffcott J, 19 July 1843

Sources: Port Phillip Gazette, 28 June 1843; 22 July 1843; 2 August 1843

See also: Port Phillip Patriot, 20 July 1843

  Willis J, 24 June 1843

Source: Port Phillip Gazette, 28 June 1843[1] 

[2] Mr. Croke said, in the case of The Queen v. Hill, the writ of habeas corpushad been granted without any petition being made to the Court.

Judge Willis said the learned Crown Prosecutor should see the necessity of being cautious in his remarks. There was a petition on the files of the Court, or the writ would not have been granted.

Mr. Williams then moved for the discharge of the prisoner Hill, on the ground of an informality in the warrant of commitment, the writ of habeas corpus being first duly signed by consent.

His Honour was here called from the Bench into his private room, and shortly after returned into Court and said, "Circumstances had occurred, which rendered him unable to proceed with the business before the Court. The Court was opened for civil business, but he could not proceed in it or take any steps in criminal matters."

The Court then adjourned sine die.

Jeffcott J, 19 July 1843

Source: Port Phillip Gazette, 22 July 1843

The Queen v. Hill. In this case a writ of habeas corpus had been granted to bring up the body of Richard Hill, charged as one of the principals in the Port Fairy massacre, for the Crown to shew cause why he should not be discharged on the ground of illegality in the warrant of commitment upon the writ being read and the prisoner being placed at the bar.

Mr. Williams moved that the prisoner be discharged on the illegality of the warrant of commitment which was so apparent that he could not conceive any objection would be raised to the present application; he should state three objections to the warrant of commitment, the first of which was, that the names of the committing magistrates were not written in full length to the document, he was aware he could not find any precedent to bear him out on this point, it being one of so rare an occurrence; the committing magistrates had signed their names Fred B. St. John and R.H. Bunbery, instead of their Christian names being in full, there was in consequence a degree of uncertainty in the document as to who the parties so signing were; the second objection was, that the warrant set forth in the body of it, charged before us with the murder of three Aboriginal women and one male child, without stating whether the child was an Aboriginal child. It being necessary in all warrants of commitment that they bear upon them the facts and truth, as well as the specific charge for which the prisoner was committed, leaving nothing for imagination, as in the present case; the last objection he was convinced was one which could not be controverted, the warrant as addressed to the Goaler set out in the heading "receive into your custody the body or bodies of Richard Wills Hill" had this borne any relation to the Siamese twins, he could have understood a warrant so worded; there, however, was the prisoner standing at the bar, and it must be apparent to every one that he was a single body. It was laid down in all authorities on criminal law as well as in Plunket's Australian Magistrate that a warrant of commitment should not be in the disjunctive, which was the case here. Upon these grounds he was satisfied the court would direct the discharge of the prisoner.

The Crown Prosecutor opposed the application, contending that the commitment was good, valid, and substantial, he admitted there might be informalities, but if it was clear upon the face of the depositions which were before his Honor, that a murder, treason, or felony had been committed, and the court could remand the prisoner to take his trial, though the commitment was bad. Having stated thus much he would briefly reply to the objections taken by Mr. Williams to the commitment, with regard to the first objection, parole evidence could be given on the functions of the committing magistrates, at the same time he would draw the attention of the court to the fact that seals were appended to the document which gave it authenticity; the words "body or bodies" could be struck out as surplusage, with regard to the other objection, he did not consider it would be necessary to occupy the time of the court by replying to it, but he contended that nothing had been urged that could warrant the court in discharging the prisoner.

Mr. Barry, as standing counsel for the Aborigines, followed Mr. Croke in opposing the discharge of the prisoner, on the ground that the objections were frivolous, and that were they of the nature stated by Mr. Williams he was sure his Honor would not discharge the prisoner upon mere technical grounds, and with respect to bailing felonies, the Court of Queen's Bench invariably required four sureties or such heavy bail, as the nature of the case upon the face of the depositions might require.

His Honor. Mr. William's application is not for bail, but for the discharge of the prisoner.

Mr. Williams. In reply, supported his former arguments, and pointed out another objection in the warrant to shew the necessity of justices signing their names in full in the body of the warrant, the name of one of the magistrates was set out as W. H. Bunbury, while the signature was R.H. Bunbury; this discrepancy he considered was in itself sufficient for his Honor to direct the discharge of the prisoner.

His Honor, in delivering his judgment said, the present application had been brought before him for the discharge of the prisoner, before noticing the argument in support, and against the application he begged to call attention to the 31st section of the 9th Geo. 2nd, c. 22, the Habeas Corpus Act, the first six sections of which relate to bailable offences, the seventh section sets forth what is to be done in commitments for want of form in treasons or felonies. Mr. Williams contends in the present case, the commitment does not charge prisoner with either treason or felonies and that the offence is not properly described and the prisoner is therefore entitled to the benefit of the Act and to be discharged. He, Judge Jeffcott, thought that the remedy ought under the third section of the Act did not apply, as it only relates to bail whereas the present application is, that the prisoner should be discharged absolutely. He had read the depositions previous to his coming into Court, which was his duty to do, in order to prepare himself for the case, and it was quite clear upon them that the offence was charged which came within the meaning of the statute, if bail had been applied for, it must have been by a different proceeding. There was no doubt of the power of the court to remand the prisoner, though the warrant of commitment was defective, as laid down in the case of the King v. Marks and Others, 3rd East 151. If Mr. Williams wished the prisoner to be discharged on bail, he must pursue a different course, and make a special application for that purpose. Now, with respect to the power of the Court to admit prisoners charged with treasons and felonies, he apprehended, indeed, there was not a doubt of it that the Court, by the Charter, possessed all the powers of the Court of Queen's Bench, where it had been laid down that Judges might admit to bail even for murder. If an offence be not bailable, it does not become so because the commitment is defective. The question for him to decide was, whether the prisoner ought to be detained in custody. After reading the depositions, which he had done, there was no doubt that a most atrocious crime had been committed, but he would not go into the merits of the depositions, or make one single comment on them which might prejudice the case of the prisoner upon his trial, as the case would hereafter go to a jury, but under all the circumstances of the case, the facts as they then appeared, justified him in keeping the prisoner in custody, as there was sufficient upon the deposition to warrant the detention of the prisoner, who would be remanded.

Hill was then removed from the dock.

Jeffcott J, 31 July, 1 August 1843

Source: Port Phillip Gazette, 2 August 1843

His Honour Judge Jeffcott, took his seat on the bench, at ten o'clock, where he was received by the Police Magistrate, and upwards of twenty other Justices of the Peace; the bench was also graced with several ladies.

The following Jury were empannelled: John Henlaw, Charles Hutton, John K. Hill, George Haskell, Benjamin Hawkins, George Hyde, Henry Harper, John Hodgson, John Hendors, William Hutton, George Hayes, and Joseph Hawdon

Richard Guineas Hill, John Beswick, and Joseph Betts, were then placed at the bar, and the Registrar proceeded to read the indictment, which charged the prisoners Richard Guineas Hill with the wilful murder of an Aboriginal female, named Conyer, at Muston's Creek, in the District of Port Phillip and Colony of New South Wales, on the 23rd of February, 1842; the prisoners Beswick and Betts being present, aiding and abetting in the said murder; a second count in the information charged Beswick as principal, and the other prisoners being present aiding and abetting in the murder; the third count charged the prisoner Betts as principal, and the other prisoners as accessaries; the fourth, fifth, and sixth counts charged the prisoners with committing the offence with a gun, charging the prisoners alternately as principals and accessaries; the seventh, eighth and ninth counts charged the offence as being committed with a pistol, varying the offence as above; a tenth count charged all the prisoners as principals. Upon the prisoners being called upon to plead, Mr. Williams, on behalf of Hill and Beswick, said he should first like to read the information to see what they were to plead to.

The Crown Prosecutor said, that no objection could be taken until the prisoners had been given into the hands of the jury.

Mr. Williams denied this. The information must be read so slow that every word of it can be understood and written down, and he wished to look at the information to save the time of the court.

His Honor. Have you not a copy of the information, Mr. Williams ?

Mr. Williams. No, your Honor, and I believe in accordance with strict law, we are not entitled to it, which is a very hard case, considering a prisoner for treason, and all offences except the one the prisoners are charged with are entitled to this indulgence, we have applied for a copy which has been refused.

The Crown Prosecutor wished to disabuse the mind of the court, and all who heard him, from any impression that the trial of the prisoners at the bar would be conducted in a different manner from any other trial which had taken place in the criminal court in this district, and would be conducted with as much faith and candour by the Crown and in accordance with the established rules of law as acted upon in England and Ireland.

His Honor. Of course it will; do you refuse to let Mr. Williams look at the information at this stage of the proceedings?

Crown Prosecutor. I do, your Honor.

His Honour. Then go on Mr. Williams, I will hear what you have to say.

Mr. Williams. Your Honor, my objections are to shew why the prisoner Hill should not be put upon his trial. I have six objections to take, and I do not think them either frivolous or vexatious, and it is the duty of a barrister with such a heavy responsibility as I have on my hands, to raise any objections which he really thinks may be of use to his client. My first objection is, your Honor, that the warrant of commitment is bad, and when the prisoner was before the court onhabeas corpus, I argued this point but the court gave no opinion, which may be in your Honor's recollection. I then quoted in support of my position, Rex v. Erevetin Caldicotts' reports Archbold's Justice of the Peace, page 239, and Plunket'sAustralian Magistrate, page 52. Therefore, your Honor, this objection takes in the second, which is, that until the warrant of commitment be declared bad, the court has not the power to remand upon the depositions. In this I am supported by the judgment of Chief Justice Bayley, in exparte, page-, laid down in Barnwell and Alderson's reports, and I am supported in this by the 6th section of the Habeas Corpus Act, which section regulates the Habeas at common law, and I would also refer your Honor to the 3rd vol. of Blackstone's Commentaries, page 136. The third objection is that the prisoner Hill having been remanded back to gaol on the strength of the depositions without a rule being drawn up for that purpose. This course I contend is absolutely necessary, as borne out in the case of Rex v. Nash,in 3 East, page 167. By that case it was quite plain that before even the prisoner could be committed to the same custody, a written order must be made out. The fourth objection may it please your Honor, is that the prisoner having been remanded on the strength of the depositions, the warrant of commitment being supposed to be bad, the prisoner is at large, for if the warrant is bad the depositions are bad, and if such be the case, I should like to know by what authority he is detained, and the detention is therefore illegal. The learned gentleman here quoted a case, in support of his position, in 1st Barnwell and Creswell, page 260, and contended that the prisoner was not virtually before the court. My fifth objection, your Honor, is that the depositions are not taken in accordance with the statute 7th Geo. IV, c 64, sec. 2, which enacts, that the depositions must be signed by a justice of the peace, and that in order to make the depositions good they must sustain on them sufficient for an indictment for perjury, and these depositions do not sustain perjury, not being signed by a justice of the peace, but by Frederick Berkley St. John, Police Magistrate, and not J.P. The Act was imperative that the depositions must be signed by a J.P., and there was in this case nothing to show that the depositions had been taken before competent authority, and therefore they could not be sustained as decided in Rex v. Crosbie 2nd term reports, page 215, and Rex v. - in Carrington and Payne's. Indeed there is nothing on the face of the depositions to shew what court they were taken in, or if they are taken in any court at all. They might have been taken at Sydney, or in any other place, at all events they were uncertain, and the liberty of the subject your Honor is not now to be put in jeopardy on such proceedings, and I shall call upon your Honor to protect these men, and see that justice is done them the conservator of which you are in this district. Your Honor, before a person can be indicted for perjury it must first be proved where the depositions are taken: Rex v. Hutton, Russell and Ryans, Crown Case 421. If the court is of opinion that these objections are not sufficient for the discharge of the prisoner Hill, I will raise another objection, which I am certain will be fatal, although it is an objection which I would rather not take.

(The court making no reply to his observation of the learned gentleman, Mr.Williams proceeded.)

My sixth objection, your Honor, is that the depositions were not taken before a magistrate at all, they were signed by Frederick Berkly St. John, P.M., whereas no such person exists. The police magistrate of Melbourne is named in the commission George Frederick Berkly St. John. We therefore fall back to the 7th of Geo. the 4th, and there we find that the depositions must be subscribed by a magistrate. I now raise an objection the jurisdiction, on affidavit.

Mr. Barry objected to this course. If a demurrer was filed, it must come before the court in proper form, and quoted from the papers printed in the case of Kilmaister and others tried [reference to go here] at Sydney, for the Aboriginal murder at Liverpool Plains.

Mr. Williams. My plea is before the pleas are pleaded.

The Crown Prosecutor. Your Honour, really I did not expect to be called upon this day to argue again upon a case already decided by your Honor, when the prisoner Hill was brought before the court on habeas to be discharged. I will, however, your Honor, reply to the objections taken by my learned friend. The learned Crown Prosecutor then replied in similar words to those used by him on the occasion of Hill being brought before the court to be discharged, contending that his Honor had committed Hill on the depositions, without any reference to the warrant of commitment, and concluded by observing that the addition of P.M. was sufficient to shew Fredrick Berkly St. John was a justice of the peace.

Mr. Barry followed on the same side, observing that he had considered the case as already decided, and that there was nothing to prevent the case from going on.

Mr. Williams briefly replied, stating that he had no doubt of the defectiveness of the whole case and he would consent to the case being referred to Sydney, and let the whole case (as it would) turn on the warrant of commitment. I can shew in the King v. Nash, that it was then held that it was necessary that an order should be in writing.

His Honour. I do not think it necessary that an order should be written, the court can commit to certain custody. To put the matter beyond question, I recommitted the prisoner on the depositions, but I gave no opinion whether the commitment was legal or not. This case differs from the King v. Nash, where in order to change a bad commitment into a good one, a fresh order was made, it by no means follows that the present commitment is bad.

Mr. Williams. Your Honour, the depositions being bad the case falls to the ground, there being no depositions. I never applied for bail, but for the discharge of Hill.

His Honour said he would reserve the points urged by Mr. Williams, who then read the plea of the prisoners, which set forth that having heard the information read, the court ought not to take cognizance of the felony in the said information above specified, because protesting that they are not guilty of the same, nevertheless they say that the said information was prepared and formed before the criminal sessions to be held on the 21st day of June last, when his Honour the then Resident Judge (Willis J.), adjourned the criminal sessions from that day to the 26th day of June, and that the said criminal sessions so adjourned to the 26th of June, were never held or adjourned from that day to any other day, and that they are therefore entitled to their discharge. The plea was supported by the affidavit of Mr. Belcher, Hill's attorney, which set forth that he had spoken to his Honor the then Resident Judge on the Monday following the 26th of June, and asked his Honor what would be done, when his Honor replied, that he should not sit, and he supposed the criminal sessions would die a natural death. Your Honor (continued Mr. Williams) the criminal court not sitting at the time appointed, I contend being a gaol delivery the prisoners should be discharged.

His Honor. You then urge the criminal sessions being adjourned from the 21st to the 26th of June, and then not taking place, operates as a general gaol delivery.

Mr. Williams. It does your Honor, and dies a natural death.

His Honour. Do you move then now for the discharge of all prisoners.

Mr. Williams. No your Honor, only for the discharge of my clients, I am not acting as an amicus cura.

The Crown Prosecutor replied to the plea filed in abatement taking issue on the words "prepared and found."

His Honour directed a venire to issue returnable immediately, to empannel a Jury to try the issue joined between the Crown and the prisoners, whether or not the information was drawn and prepared before the 24th of June last, and the following Jury were empanelled for that purpose, the first panel being requested to be withdrawn: John Hawkins, George Hyde, George Haskell, A.H. Hart, James S. Johnstone, Thomas Hamilton, Thomas Howe, and Joseph Hawdon (foreman. )

Mr. Williams shortly stated the case to the jury, saying it was a mere matter of fact they had to try, which was, whether the information had been drawn and prepared before the 24th of June, 1843. Evidence was then called to prove the allegation in the prisoners' plea, but upon the Crown Prosecutor stating upon his honor the information was not prepared on the day named, Mr. Williams would not proceed with the trial of the issue, and the jury by direction of the learned Judge, returned a verdict that the information was not prepared and found before the 24th of June, 1843.

The prisoners were then called upon to plead, and severally pleaded not guilty.

The panel to try the prisoners was then called, in the selection of which the prisoners' counsel appeared to act with great caution, exercising their right of challenge until the whole panel was run out, when only eleven jurors had been sworn. The Crown Prosecutor was therefore necessitated to pray tales which was granted. The juror called upon to act on the tales, was Mr. Williams. I. Hind. The panel being complete were then as follows: John Hawdon (foreman), John Harrison, George Hyde, John Headlum, John K. Hill, John Hodgson, William Hutton, Charles Hutton, and Isaac Hind.

The Indictment was then again read over, occupying the time of the Court near one hour.

Mr. Barry opened the case to the Jury, stating the information contained ten counts describing them as above. The Crown Prosecutor then stated the case as detailed in evidence, and called,

Charles W. Sievewright, sworn and examined by Mr. Barry. I am Assistant Protector of the Aborigines. I recollect about the 24th or 25th of February, 1842, I was at the Aboriginal station Colon, Mount Rouse. I know Messrs Smith and Osbrey's station. From information I received I went with a native to a tea tree scrub on that station, near the hut. Went into the scrub and found the bodies of some Aboriginal natives. The day I went into the scrub was the 25th February. I can identify some of them. One female was named Naidgoneher, and one named Connyer. She was lying dead. There was a gun shot wound through the abdomen, and the left arm broken with a gun shot wound. I can take upon myself to say it was a gun shot wound. I had seen this woman before. I had no difficulty in recognizing the woman again. At the time I paid minute attention to the form of wounds. I then went to the station of Mr. Osbrey and returned to the scrub. These gentlemen accompanied me, the same wounds were then on the body, and I took an accurate description of them. I was not absent more than twenty minutes. The description of the wounds was written down by me at the time. This is a copy now produced. The original was sent to the Crown Prosecutor

The Crown Prosecutor said he had not received it. Some discussion then took place as to the production of the document describing the wounds, his Honor holding that in his opinion, it should be produced to aid the prisoners' counsel in their cross examination if they desired it.

Examination continued. I could not swear positively to the nature of the wounds without referring to this document. I can now do so having looked at the document. After committing the description of the wounds to writing, the dead bodies were burnt. I swear that life was extinct at the time.

By Mr. Cunninghame (on paper being put in.). This document was written within the last two or three days, it was from that paper I was enabled to give the names of the dead women to Mr. Barry.

Mr. Williams here contended all the evidence given should be struck out, having misled the counsel from that statement.

Mr. Stowel said the witness had refreshed his memory from what was believed to be the original document, when the fact was, it was only a copy.

His Honor reserved the point.

Examination continued. I know the prisoners at the bar. I have seen them before about that time. I examined two of them, Hill and Betts. I made enquiries relative to the matter from all who were on the station, Osbery, Smith, Hill, and some females, Mrs. Smith, and a young lady whose name I do not know. The bullet went in on the right side of the woman and went out of the left. The left arm was broken by a gun shot wound. I should say the wound in the abdomen was a mortal wound. I have seen gun shot wounds before. I was 25 years an officer in the army. I am therefore able to form a correct judgment as to its being a gun shot wound, and I have no hesitation in stating that the wound was a mortal one. The bone of the left arm was fractured. I did not see much blood. I saw this woman about a week before I saw her dead. I cannot say whether the blacks have muskets or not.

Cross-examined by Mr. Williams. I know the country sufficiently to prove a map. (Map of the place where the bodies were found handed in.) I can say the day when I saw those dead bodies, it was on the 25th of February. I was led to the spot by a native whose name I do not recollect. I can swear to a gun shot wound. It was a hot day when I was there. There was decomposition in one of the bodies. I can swear to the difference of a spear to a gun shot wound though decomposition had taken place. I did not examine the parties on oath until some time in April. I took merely verbal communication on the day I saw the bodies. I was never in service where wounds were received. I can swear that the wound Isaw was mortal. I saw no black men dead. I never heard of any black men being wounded. The depositions I took in April are in the possession of the Crown Prosecutor. I took the deposition of Osbrey on oath, he denied all knowledge of the transaction. A lso took the deposition of Arabin, he denied all knowledge of the transaction. Osbrey said he had not seen a European on the station on horseback that day. M'Guiness' statement was not taken on oath.

By Mr. Cunninghame for Beswick. I received information of the occurrence about mid-day on the 24th of February. I received my information from natives who arrived that morning, they said they had just come from the scene of murder. Mr.Brock arrived from Birchett's station that day, but I do not remember at what time he came. The natives said Mr. Brock had a share in the transaction, the reason was because he rode a grey horse. The ground on which I consider the ball went into the right side was, that the wound was smaller than that on the left. I did not trace the course of the ball through the body. I stated to the best of my belief it was a gun shot wound. It was a round hole on the right side produced by a ball, there did appear to be a little inflammation. I cannot swear whether the wound was inflicted in life or after death, there was a little blood. There was a little coagulum oozing out of both wounds. There was no appearance of decay about the injured parts of this body. I have seen spear wounds but not unbarbed. I will not venture to say that the wound was not inflicted by an unbarbed spear.

Re-examined. I have not seen many wounds inflicted by spears that are not barbed, but from what I ha ve seen, I will not swear that the wound was inflicted by a spear. There was no laceration at the wound. A native can spear a person through the body.

By the jury. The bodies were in a tea tree scrub. A horse could not be seen a short distance in the scrub.

Patrick Cussen examined by Mr. Croke. I am Colonial Surgeon. I am acquainted with gun shot wounds. I heard the last witness describe a wound on the hip.

Mr. Williams objected to this mode of proceeding, and said it was a different thing were the last witness a medical man, and Dr. Cussen merely called to corroborate the statement of that medical man.

Mr. Croke contended, from a case he cited, that he was perfectly regular.

His Honor. I do not like the evidence to be bolstered up in this way, but there is the authority and you must go on.

Examination continued. From the description of the wounds given by the last witness, I should say that a wound made through the abdomen would be positively mortal. One part of Mr. Sievewright's description was rather a good one, but I have seen similar wounds inflicted by a spear, which until the spear was found in the wound, it was quite probable that they would be taken for gun shot wounds, for men have come to me in that state and said they had been speared, which statement I doubted very much until I had seen the pieces of spear in the wound. I have heard the last witness describe the wound on the arm, I should say death would not be caused from that wound immediately.

Christopher M'Guines sworn and examined by Mr. Barry. I am a bush carpenter. I recollect the month of February 1842. I was in the employ of Mr. Osbrey at the time at Muston's Creek about sixteen miles from Mount Rouse. I know George Arabin. About the 23rd or 24th of February last, I were dressing sheep with Arabin at that time. I did not see Mr. Sievewright at the time the blacks were shot. Arabin and I were called to a late dinner. I do not exactly recollect the day when Betts the prisoner came riding home at an unusual rate up to the master's hut, and had some conversation with the prisoner Hill. I saw them conversing. Betts then came to our hut, and asked Arabin for the loan of a gun. Arabin asked him what he wanted with it. Betts replied that he wanted to kill some old men kangaroo; I advised him to take the dogs, but he said he would take the gun which he got. It was a single barrelled gun. I saw Arabin load it for him with two balls. While Arabin was loading the gun, Betts went to help the others to load their horses. On his return he asked Arabin if he was certain the gun would go off. Arabin replied that it would. Betts then mounted his pony and rode off with the others. They rode off in the direction of Mr. Kemp's. I followed them and went about three-quarters of a mile, when I heard two shots fired. I stopped then for about a minute expecting to see the kangaroo. At the distance I saw six persons on horseback. I swear the three prisoners were among the six. The sound of the shots came out of the hollow. The party were ahead of me. I was on one side of the hill, and they on the other. When the shots were fired, the report of one of them was much louder than the other. I then came to the top of the hill. I saw a man named Bossequet riding after a black. The prisoner Betts then rode to the bottom of the scrub. I could see him well. As soon as he got on the clear ground, he leveled and fired his gun in a small scrub and saw a black fall. The black who fell gave a loud shriek, and some other blacks rushed out of the scrub, when the prisoner Hill, cried out, "look out here they come," when I heard three shots fired instantly. I heard Hill call Betts several times. I did not see Beswick in the scrub, but saw him go out and return with the other prisoners. There was a dreadful shrieking in the scrub. I went home, and the prisoners returned in about a quarter of an hour after me, on horseback, with weapons of the blacks with them. Betts had a licangule,(?) and Hill had a shield and spear. They were playing with them. When Betts returned the gun it was not loaded. There was no person on the station on horseback that day but the prisoners, and those who are not taken. When I came home at night, at supper Betts and Arabin were conversing about the blacks. Betts said there were some loubras and children shot in the hollow. Arabin said, which hollow? Betts replied, in the hollow where the horses or bullocks were found. I don't recollect, but to the best of my opinion this is the scrub I allude to. Arabin asked Betts where he had got the blacks' weapons. He replied that some blacks had run away and left them in the hollow. The scrub is in the direction of Mr. Kemp's station. I am positive Betts was the man who fired the piece at the end of the scrub. I am positive Hill was there. I heard his voice. I was about 140 or 150 yards off. I swear Beswick was there also. If it be sworn that Beswick was not there, I will still swear he was. They were all armed. Hill had a pair of pistols in his belt. Beswick had a short gun or rifle. One of the shots that I heard fired I believe was a pistol shot. When I saw the native fall I could not say whether it was a man or a woman. I did not see any of the other natives fall.

By Mr. Williams. I swear to nothing but what I saw clearly. I am free now. I have served my time in 1828. I am a bush carpenter. I was formerly employed at the Grampians, I can't recollect the day of the month. I have sworn it was on the 23rd or 24th of February. It was either on a Wednesday or Thursday. The reason I recollect it so well is that it was such an extraordinary circumstance. I am aware that I swore first to the 24th, but I found I was wrong. I can read, but I cannot write. When Mr. Powlett asked me what I saw, I said I knew nothing about it. I told a lie then. The reason I did not give up the prisoners was that I was informed I should be transported if I had done it by myself, but when they got divided I did give them up. (That portion of the witness's evidence was then referred to, taken at the police office, where he swore that he saw a man fire at the end of the scrub, that man as Betts, but did not know what he fired at, and on referring to his testimony in court, the witness swore he saw Betts fire at a black, who fell.)

Cross-examination continued. I first informed Mr. Robinson of this about ten weeks since. I have been in his service ever since (at least the service of the protectorate). I don't know a man named Samuel Duke by that name. I went down with a policeman to the scrub. I did not know his name. Mr. Powlett sent me to show him where the blacks were killed. I showed him a skull. He would not believe it belonged to the blacks. I went to see what had been done on my way to the out station the following day. I told the policeman I knew nothing about it, and did not know where the blacks were shot, or any thing about them. I might have talked to that policeman about the reward. I might have told him it would be a good thing to get that reward, on going to the scrub. The policeman was the first party that told me about the reward. I was put into a cell in the watchhouse. Arabin was in that cell. I think I was put in on a Saturday. I was not a prisoner that day. The chief constable put me in and bolted the door. Arabin would not speak to me at all. I was with him about an hour. He did not speak to me. All he said was "I want nothing to say to you," and went and laid down on the rug. I asked to see Arabin, because as he had given a false evidence before, I wanted to advise him to speak the truth. The watchhouse-keeper let me out. He was the same person who bolted the door. I do not know whether Arabin was examined on that day, but I think he gave his evidence on the Monday following. I have received some of my wages from Mr. Thomas, the Assistant Protector. I received £1. 5s. I know Thomas Stephens. I saw him in Van Diemen's Land. I accused him of robbery there. He was committed, and I came here before the trial came on. He robbed me of £25. I received £6 back, and did not appear against him at that trial. I came over here hired by Mr. Rucker. I have seen Stephens here, and have drunk with him. Stephens wants to say it was his money, and accuses me of having played him this trick, but I contradicted him. I never admitted that I tricked Stephens in Carr's public house.

By Mr. Stowell for Beswick. I swear we can see from one hut to the other on the station. Both doors face towards the creek. I swore I saw Hill and Betts in conversation. Betts rode his own pony. The party was at no great distance ahead of me when I first started from the station. I kept them in sight till they got to the top of the hill. I was not thirty yards from the party when I heard the first two shots.

By the Court. I took four dogs with me; two belonged to Mr. Beswick and two to me.

Cross-examination continued. I was warned of Beswick. I went to Beswick's head station to get my boots changed. The day after the supposed murders I was sent out to an out station to build a hut.

Re-examined by Mr. Barry. I never told Arabin that I thought it was blacks they were shooting, not kangaroo, because I heard shots firing, saw blacks running, and also saw their instruments. I never told Arabin what that paper contains.

Thomas Osbrey, sworn and examined by Mr. Croke. I lived there on the 23rd of February, 1842. I know the prisoners. Hill was in my employ as manager. Betts was also in my employ as hutkeeper. Some gentlemen visited my station on that day, Smith, Whitehead, and Bossequet. No other strangers came on my station that day. These visitors came into my hut. While they were in my hut, Betts came to the door and said there was a mob of blacks near hand. The whole of the party got up and got their arms. I did not take any notice of what they talked about, but supposed it was about the blacks. I was in the habit of remonstrating with them. When they returned I saw some blacks' arms. I never heard the prisoners say that they would shoot any one who informed against them. I never saw Beswick on my station at all that day. He could not have been there without my seeing him.

Mr. Williams here interrupted the proceedings, and said he was really astonished at what appeared to him to be a most unwarrantable proceeding. They had allowed the witness M'Guiness to go into the same room with Arabin, and it was his object to keep them from each other until both had given their evidence.

His Honor ordered them to be separated immediately.

Examination continued. I remember Mr. Powlett and Mr. Griffiths coming to my station. They did not examine me. I made a statement in writing.

George Arabin, examined by Mr. Barry. I was living on Messrs. Smith and Osbrey's station on the 23rd or 24th of February last. I dined with M'Guiness. Betts, the prisoner at the bar, came home on his pony, and asked me to lend him my gun to shoot three kangaroos. M'Guiness advised him to take the dogs. I lent them my gun, which was sheltered in the stock. I loaded the gun, and put in two or three balls. When he got the gun he went to the master's hut, and I saw Hill and Beswick were there. There were six of them altogether. Hill rode a mare belonging to Mr. Osbrey. Beswick rode a chestnut mare also. They all rode off in the direction of Kemp's. They took no dogs with them. M'Guiness went after them to get kangaroo skins. When they went out I do not recollect seeing any arms with any body but Betts. They were absent altogether about an hour. When they returned they had natives' weapons in their hands. In the evening I asked Betts where he had seen the blacks. He replied in the place where we had found the horses before, and the blacks had dropped their instruments and run away. He said something else that I do not recollect, but it was about the blacks. M'Guiness said he ought to be ashamed of himself and had better hold his tongue. When my gun was returned it was unloaded. Betts said it had carried well, and he had hit a gum tree, and fired it twice. I recollect Sievewright coming three days after the occurrence. He addressed us all. He said three black women and a child had been killed, and he would give £30 reward for any one who should give any information on the subject. I afterwards went to the scrub, and saw the remains of the loubras that had been burnt. Mr. Sievewright took my evidence. I am positive the three prisoners went out with the party.

Cross-examined by Mr. Williams. I never was a prisoner of the Crown. I was arrested on this charge at Geelong on the 25th of May last by the Chief Constable. I was taken to gaol at Geelong, from thence to the Melbourne watchhouse. While I was locked up in that watchhouse I saw M'Guiness. That was on a Saturday before my examination. The door was opened, and M'Guiness walked in. He said "what! Are you here?" I said, "yes, I am." I told him I wanted no conversation with him, and asked the gaoler to take him out. He then asked me for a light of the pipe, which I gave him, and I then went and lay down in the corner. He was there about an hour. I asked the gaoler what he put him in there for, who replied that he had orders to do so. I never said "take that villain M'Guiness away, he is wanting me to take away innocent blood." I was brought up on the same day he was put in. My first examination was private. After the private examination I was discharged upon no terms. I entered into recognizance to appear to-day. I have been in the employ of Mr. Thomas. McGuinness was also there. I had three biscuits to day. Mr. Thomas, the Assistant- Protector, paid for them. My deposition was taken by Mr. Sievewright. I then swore that I knew nothing about it. There is a good deal of difference in swearing to the truth here and swearing differently up there, where I was in bodily fear.

Re-examined. I am certain Mr. Beswick was on the station that day.

This was the case for the prosecution, it being near eleven o'clock,

The Court then adjourned until the following morning at ten o'clock.

The Jury were ordered to be locked up in the custody of a bailiff during the night at an inn, and not have communication with any person. The Jury then retired to the Royal Hotel.

Tuesday, August 1.

The Jury were empanelled a little before ten o'clock, and upon his Honor taking his seat, and the prisoners being placed at the bar,

Mr Williams begged to take the following objections to the evidence of Mr. Sievewright respecting the name of the Aboriginal woman (with whose murder the prisoners are charged) and the position of the wound on her body, ought not to be sent to the jury, because that the witness swore he was unable to give evidence until he had refreshed his memory by a memorandum. Second, that a paper writing had been made by the witness at the moment he examined the body of the dead woman, which was not produced. That the paper writing used by the witness was made by him only three days before the trial, and sixteen months after the original memorandum was taken, which memorandum was not produced at the trial. That the witness, by his answer to a question from the counsel for the Crown, prevented the counsel for the prisoners from taking this objection until the evidence relative to the identification of the dead woman and the position of the wounds on her body had been adduced.

His Honour, having taken notes of the objections,

Mr. Williams said, may it please your Honor, and gentlemen of the Jury, I appear here this day on behalf of the prisoners Hill and Betts, and I think it would be a work of supererogation on my part, to comment on the evidence brought forward in this case, evidence so inconclusive. Gentlemen, it is an arduous duty for counsel to sustain the defence of his clients against a prosecution so instituted. Before going into the facts of this case, I will draw your attention to the manner this case has been conducted. Gentlemen, the prisoners have been in custody some months on this charge. Private examinations have been taken, and it was not until a mandamus was issued, that they could get the benefit of legal advice. These parties, gentlemen, have been imprisoned two or three months, awaiting to take their trial, and they should have been tried, according to the rules of court in this district, within one month. These facts speak for themselves, every facility being thus afforded to the government to convict these prisoners, but, gentlemen, you are not to convict them on the testimony of the two men who gave their evidence yesterday. Gentlemen, my blood boils in agony for the men who could give such evidence. While every facility was afforded the government in bringing forward this charge, every obstacle was thrown in the way of the prisoners. Gentlemen, a deposition was kept back; Osbrey's deposition was kept back from us, so that we were not rightly prepared with our defence.

The Crown Prosecutor interrupted Mr. Williams, and said that Osbrey had not made a deposition on oath, but had given merely a written statement.

Mr. Williams continued. Well then a statement in writing, it is all the same. I am certainly aware that we were not entitled to it, but every facility should be afforded in criminal case for prisoners to make their defence. Gentlemen, even in civil cases, the utmost courtesy is observed in this respect, and should be so in criminal cases. I ask you, gentlemen, is it not extraordinary - is it not reprehensible - that these papers are kept back from the prisoners' counsel? Gentlemen, will you believe it, that the depositions taken on oath by Sievewright and used against the prisoners at the Police-office, were withheld from them? Gentlemen, there is an institution to protect the blacks. "Heaven save the mark!" but I do not know of any institution to protect the whites. These blacks believe the Protectors to be their friends, and, led on by this supposition, they commit those aggressions of which you have heard so much, which take place from their believing we are trespassers upon their country: these Protectors mislead the blacks in this respect, and constant affrays are taking place, in some of which the whites fall. Gentlemen, if we are not entitled to the country, let us quit it. Let the government officers give up their salaries and go home. But, gentlemen, while we are here, let us have that protection which as British subjects we are entitled to. Gentlemen, the prisoner Hill, who is most respectably connected at home, and is not yet of age, came out here for the purpose of improving his condition in life. On his arrival here he took out his licence, and went to reside in the bush, expecting protection from the government from the aggressions of the blacks, but he soon found the government protection to be very parsimonious. Gentlemen, there is no person entitled to so much protection as the settler, for it is from him all our wealth is derived, our commerce flourishes through his industry. But, instead of being protected by the government, they are left almost unprotected. What security is there for the settler in the bush, where there are neither police nor any thing else? Is it then to be wondered at that conflicts take place between the blacks and the whites ? There is an Act of Council passed by the government called the Crown Lands Act,authorizing the occupation for depasturing purposes on Crown lands, and to provide the means of defraying the expense of a Border Police. This is done by assessment on the stock depasturing, yet no protection is afforded from this source, although the money is raised by the government for that ostensible purpose. I am quite willing there should be a Protectorate so long as these protectors do their duty, which I must say is not done in a manner that can be of service to the community. It is the duty of these protectors to teach the blacks the meaning of right from wrong, and to read and write. When they do this, I will be the first to advocate them and recant what I this day said. I must now comment briefly on the evidence adduced. There is a race of beings, but happily not many of them - that are outcasts of earth and heaven. Their weakness and avarice can be played upon to come and give evidence in a court of justice for the sake of lucre and reward; such are the men M'Guiness and Arabin - men who are shunned by society, and have no feelings for the world. Is it necessary for me to dwell on such testimony as that given by M'Guiness and Arabin? Gentlemen, I will by evidence prove that man, M'Guiness, to be what he really is. With regard to Mr. Sievewright's evidence, I contend that it was inconclusive in every respect. He not being a medical man, and giving an opinion which none but medical men can give, must, I am sure convince you, that his evidence is worth nothing. Why was not a medical man sent for to take down a proper description of the wounds on the supposed murdered persons? Gentlemen, is it an excuse that no medical man was sent for in a case of murder, because he lived forty miles off ? The evidence of Mr. Sievewright was refuted in every respect by the next witness called for the Crown, I mean Dr. Cussen. As for Arabin's evidence, take it for what it is worth. Gentlemen, I am not justified in detaining you any longer, but I will simply ask, is it from such evidence as this brought forward by the Crown that you are to find these men guilty? The witness Osbrey, the next witness called, rather disproved that for which he was put into the box for. He certainly was a righteous man, and it was quite refreshing to me to see him in the box after such a scene of iniquity which had preceded him. If these blacks have been killed, the question is, who killed them? Might it not have been an affray amongst themselves, for you are told blacks were seen running. Whoever was in this affray - for an affray it was - it is quite certain the prisoners were not there. It is the nature of Britons to protect women, not to kill them. I do not pretend to say who killed these women, but I will remind you of one fact - that of Allen's murder - a white man which took place in that neighbourhood four days before.

The Crown Prosecutor objected to this assertion, unless proof was adduced.

Mr. Williams continued. Gentlemen, it is not for me to influence your minds in this matter. At all events, you yourselves well know the unprotected state of the district. You have been told this is a case depending on circumstantial evidence, and his Honor will tell you that circumstantial evidence must be received with great caution, for in many instances, when a party has been found guilty of murder on circumstantial evidence, the party who was supposed to be murdered was found living. These men have sworn deliberately, that on a former occasion they did not speak the truth, and it is laid down in Archbold's Criminal Pleadings, that such a statement goes much against the credibility to be placed in what they swore. Gentlemen, I feel convinced you do not require me to go into evidence for the defence, but will at once find these persons Not Guilty. But if necessary, I will prove a fact of the most revolting nature; it is in evidence already, that M'Guiness was put into the same cell with Arabin. I will prove to you, although Arabin swore to the contrary, that shortly after M'Guiness was in the cell, Arabin called to the watchhouse-keeper to take him away, saying, "I know well he wants me take away innocent blood." Gentlemen, if I prove this, is it not enough to make your flesh creep from your bones, when you learn such means were resorted to for the purposes of gain? I will bring a witness here to tell you the Van Diemen's Land story, and shew the credibility that is to be placed on M'Guiness' evidence; but gentlemen is it necessary for me to rebut testimony that is not worth anything? I feel assured that such a Jury as I am now addressing will not be influenced by the government or in any thing I may say, and I call upon them to do their duty to the prisoners and the Crown. Gentlemen, I shall not be satisfied, unless you at once return the prisoners not guilty, you will by this save a most disagreeable task, and delight every person in the district; and why should you not do so, when you must, as I do, believe them to be innocent. Gentlemen, we are likely to be in the same position as the prisoners, if a conflict with the natives, death takes place. You have this day a solemn duty to perform, and I am sure your verdict will be as your conscience dictates. I leave you with regret, for I am aware that gentlemen of talent and education are before me, and I trust you will supply the deficiency of the advocate, by the sufficiency of your minds. Gentlemen, let my words dwell on your minds, and let mercy temper the sword of justice.

Thomas Stephens sworn, deposed as follows. I know M'Guiness, travelled with him from Perth to Ross in Van Diemen's Land. When we came to Ross we went to a public house and had some rum, for which I threw down a five pound note. The landlord returned me four one pound notes and sixteen shillings. One of the notes had four holes in it. A man named Fox was present. I would not believe M'Guiness on his oath.

Cross-examined by Mr. Williams. Barry. Am not an emigrant. Have known Guiness seven or eight years. Have been in his company once. Was once transported. Was never imprisoned in Van Diemen's Land except by M'Guiness. I was in gaol on another occasion.

Re-examined by Mr. Williams. M'Guiness charged me with robbing him, and swore to the note with holes in it, which was seen by him when the landlord gave me the change. I was committed, but M'Guinness did not appear to prosecute me and I was discharged. I saw M'Guiness in a public house in Melbourne. I accused him of extorting money from me in Van Diemen's Land. He did not deny it, but boasted of it. This took place in the presence of John Shanks.

John Shanks sworn and examined by Mr. Williams. I am a publican. I know the last witness, he was in my employ. I know Christopher M'Guiness. I remember being in their company at Carr's public house. I would not believe M'Guinness on his oath from his general character.

Cross-examined by Mr. Croke. I have known M'Guiness about seven years. This was in Van Diemen's Land. My acquaintance did not continue all that time. I only knew him in Van Diemen's Land. I afterwards knew him in Port Phillip, being a publican. The reason that I would not believe him on his oath is, that he was always drunk, and was turned out of every house in Melbourne. I know him to be a disorderly character.

 

Further evidence was given that M'Guiness could not be believed on his oath.

Mr. Cunninghame for Beswick, then addressed the jury, and called witnesses, who proved a clear and undeniable alibi.

Mr. Barry then addressed the Jury shortly for the Crown, when

His Honor began to sum up - he was interrupted by the Foreman, who informed him that the Jury had already made up their minds, and pronounced the prisoners Not Guilty.

Mr. Croke objected to their discharge and stated that he had another charge to bring against them, but at the suggestion of his Honor he allowed them to be discharged.

His Honor in discharging the prisoners said, it would have been an everlasting disgrace on the Government, had not this case been investigated, and had the prisoners been found guilty, he should have passed sentence of death upon them without the slightest hope of mercy.

Notes

[1]  Justice Willis was removed from office on the 24th of June 1843, the first day of the hearing in this case. It was then taken up by his successor, Jeffcott J.

Like R. v. Lowe [1827] NSWKR 4; [1827] NSWSupC 32 and R. v. Kilmeister and others (No. 2) [1838] 2 NSWKR xxx (the Myall Creek case), it exposes conflicting views about the rights and duties of Aboriginal people. The arguments of defence counsel are particularly noteworthy here, first for the very technical approach unsuccessfully taken to procedural matters, and then for the final argument to the jury. Just what was that argument, that the defendants did not commit the crime, or that they were justified in doing so? Was this the same argument as in R v Lowe, in less sophisticated form? Whatever its essence was, the jury seemed to be even faster in reaching a verdict than that in Lowe.

Published by the Division of Law, Macquarie University