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

R. v. Jacky [1843]

Aboriginal defendant - Aborigines, capacity to plead - Aborigines, interpreters - cattle stealing

Supreme Court of New South Wales, Port Phillip

Jeffcott J., 12 October 1843

Source: Port Phillip Gazette, 18 October 1843

The following jury panel was called: Benjamin Levien, Benjamin Lawford, A.B. Lladsay, Jacob Marks, James Mayne, Samuel Lake, John Lynch, J.S. Lambert, Hugh Middlemiss, James Lane, William Mortimer, and Edward Langhorne, foreman.

JACKY, Aboriginal native, stood indicted with having stolen in the month of July last, one heifer of the value of five shilling, the property of Mr. Crosbie, of the Murray River. The Clerk of the Court repeatedly challenged the prisoner with the usual question of "guilty or not guilty," but could elicit no reply.

Mr. Croke addressed the jury for the Crown, and stated the particulars of the case. Mr. Barry, standing counsel for the Aborigines, then alluded to the question which arose on the last appearance of the prisoner in court, as to its jurisdiction in this matter, and he did not consider that the district was within His Honor's jurisdiction. This was the second time that the prisoner had been placed at the bar upon the same charge, and if Mr. Croke was not prepared to go on with the case, he should move for his client's discharge. His Honor said the prisoner should be treated in every respect as other parties and have the same privileges as the white man. He thought the jury should try the issue if the prisoner was competent to comprehend the nature of his position, and the charge upon which he was arraigned before the court. He remembered a similar case which occurred in the Middle District, and tried before Mr. Justice Stephen, in which it appeared the Aborigines were fully aware of the nature of their crime, and sufficiently intelligent to understand the proceedings of the Court. Judgment was passed, and they were duly executed. He (Judge Jeffcott) fully agreed with the views of Judge Stephen in this case, and had read the account of the trial most carefully, in which it appeared, that after the evidence had been taken, it was duly interpreted to the prisoners, and a means of communication thus established.

Mr. Barry believed that in this case, the dialect spoken by the prisoner was unknown to the Protectors.

Mr. Croke. Then the most advisable course to be adopted, is to send the issue to the jury, to try if the prisoner is possessed of such mutual capacity, as to understand the crime with which he is charged, and the nature of the proceedings.

Mr. Barry called Protector Thomas, who in his examination stated that he had made frequent attempts to converse with the prisoner but was unable to make him comprehend the nature of his position. He (Mr. Thomas) understood four or five different dialects common to the natives, with none of which the prisoner was acquainted. He had visited him almost daily since his incarceration, and would read an abstract of a journal kept by himself, by which it would appear that the length of his visits averaged about three hours daily. He found that the native would not communicate with him, but whether it arose from incapacity, or a will of his own, he was unable to swear. He had introduced five natives of different tribes to the prisoner, for the purpose of communicating with him, but without effect. The only information he could learn was the country he came from. He appeared to have been connected with the Pangmerang tribe at the junction of the Murray and the Goulburn. The black fellow introduced to him to act as interpreter, after endeavouring to make him comprehend this question turned from him disgusted, saying "big one stupid." The interview lasted about twenty minutes. He (Mr. Thomas) endeavoured to communicate with the prisoner through the medium of the other four natives, but could only glean the distance of his country. When spoken to, he, parrot like, repeated the sounds of the words, but evidently did not understand their meaning. There appeared to be no common medium through which the prisoner could be communicated with. He imagined the first time he seen the prisoner that something could be gleaned from him, and tried to explain the nature of his position, and let him understand that he would be imprisoned if he continued silent; all to no effect. He only repeated the words addressed to him. As to the prisoner's state of health, he would remark that there were several shots in his body, which the Colonial surgeon said would work themselves out.

By Mr. Croke. The prisoner did not seem inclined to know me. He was confined in the common jail and was continually jabbering to his fellow prisoners. He did not seem to understand what was said, except the affirmative and negative words, such as "no or yes." I heard one of the blacks introduced to him say "by and bye you see plenty white man," of which he seemed to take no notice.

Mr. Croke. Perhaps he was quizzing you, do you think he was?

Mr. Thomas. I endeavoured to make him understand that in so many sleeps, (the mode in which they calculate their days), he would appear before the court, but without success. He could tell me when a new moon would appear. The more intelligent natives can do so with as much accuracy as an almanack. The prisoner kept himself apart from the others, not like "Billy Billy" who sometimes would have some fun with the others. I wrote to the Chief Protector informing him of my unsuccessful attempts to communicate with the prisoner. I also spoke to Mr. Commissioner Powlett, who informed me that there was no such name as Crosbie entered in the list of squatters for the district. The abode of the prisoner was not within his boundary. All the blacks I took to Jacky tallied in their account respecting the description of the country and its distance. I drew several of the implements of war used by the natives, on a piece of paper, on which he seemed excited, and gave me the correct name of each. I redrew the weapons, whereon he repeated the former names he had given each of them.

Mr. Barry left the matter in the hands of the jury, who returned a verdict of "mental incapacity" to comprehend the nature of his crime or the proceedings of the court. On the application of Mr. Barry for the prisoner's discharge, His Honor replied, that unless Mr. Croke withdrew the prosecution, he had no power to comply with the request.

The Crown Prosecutor considered it would be advisable to remand the prisoner, until he had satisfied himself, if the district was within the jurisdiction of the court.

Mr. Barry understood that the committing magistrate had not given the prisoner the advantage of an interpreter.

His Honour replied that he would not make any observation as to the Justice of Peace who acted in this matter, he probably performed his duty to the best of his ability, and he would certainly not make any remark to embarrass those country gentlemen, who undertook duties, for the benefit of the district, to which no emolument was attached.

Mr. Barry disclaimed any intention of reflecting on the committing magistrate, but made the remark from a sense of duty to his client.

His Honour remanded the prisoner, and congratulated the jury at the lightness of the calendar. The panel awarded their fees to the hospital.

Published by the Division of Law, Macquarie University