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

R. v. Kirrup [1845] NSWKR xxx

Aboriginal defendant, murder, Aborigines, capacity to plead, Aborigines, interpreters, bail, habeas corpus

Supreme Court of New South Wales, Port Phillip

Therry J., 16 January 1845, 14 March, 19 May, 19 July, 21 August, 17 November 1845

Sources: Port Phillip Patriot , 17 January, 17 March 1845; Port Phillip Gazette , 21 May, 23 July, 23 August, 19 November 1845

See also: Port Phillip Gazette , 18 January, 15 March 1845


Therry J., 16 January 1845

Source: Port Phillip Patriot , 17 January 1845

[XX] His Honor the Resident Judge took his seat at 10 o'clock.

Mr. Barry, standing counsel for the aborigines, wished to know from the Crown Prosecutor, whether it was his intention this session, to proceed with the trials of two aboriginal natives, named Killgoblin, alias John Bull, and Koori Kirrup, both charged with murder.

The Crown Prosecutor was not prepared to put the prisoners upon their trial this Session; they must be inevitably postponed, as well as a third case, likewise for murder, from Port Albert, the witnesses in that case as well as in the former not having arrived in town. Cases from Gipps Land would be much more expeditiously tried in Sydney, in consequence of the communication with Melbourne being so uncertain.

His Honor---It is right to say respecting such cases, that under the 7 th section of the Habeas Corpus Act, upon proper application they might obtain bail. By the next Session probably the Crown Prosecutor will be enabled to proceed.

In the case of the King v. Chapman, reported in 8 th Carrington and Payne, 558, Serjeant Alford applied for bail on behalf of a man charged with murder, saying that the man's master would give bail to any amount. Lord Abinger said, the charge was murder, and that he could not accept bail after a bill had been returned by the Grand Jury; if an application had been made to put off the trial before the bill had been found, it would have been different, but after a bill had been found on a charge of murder, he knew no case in which bail had ever been granted. Serjeant Talfourd replied it was in the discretion of the Court, to which his lordship rejoined, it was a discretion which was never exercised.

The Crown Prosecutor said, informations had been found in the present cases.

His Honor.---It is certainly in the discretion of the Court, under the 7 th section of the Habeas Corpus Act, to take bail, but it is a power which the Court always uses with discretion. The cases will stand postponed until next Session, when no doubt they can be gone on with.

Therry J, 14 March 1845

Source: Port Phillip Patriot , 17 March 1845

[xx] This being the day appointed for the commencement of the Session, of Oyer and Terminer, and general gaol delivery, his Honor, the Resident Judge, took his seat at ten o'clock. ...

Koori Kirrup, an aboriginal native, was indicted for the wilful murder of Donald M'Kenzie, by beating him with a waddie, at Emu Creek, on the 15th May, 1842.

His Honor.---The best course will be to try the usual issue in such cases---is there an interpreter present?

The Crown Prosecutor replied there was not, every step had been taken by the Crown but he regretted to say that Dr. Whatton the interpreter was not in attendance.

Mr. Barry, (standing counsel for the aborigines)---Presumed it was the duty of the committing magistrates to have caused the interpreter to have entered into recognizances to have appeared at the trial.

His Honor.---There being no interpreter present nothing can be done in the matter, and I must remand the prisoner during the session.

Mr. Croke considered it the duty of the Chief Protector to have written a letter to Dr. Whatton to have attended, or to have obtained an interpreter.

Mr. Barry must exonerate the Chief Protector, it was not his duty to have written a letter, but Dr. Whatton should have been subpoenaed.

Mr. Croke said, Dr. Whatton was a magistrate and, therefore, should have attended.

Mr. Barry replied there was not much inducement for a witness to attend two hundred miles, without some guarantee for his expenses---Mr. Robinson was ill.

His Honor.---Under the circumstances the prisoner must be remanded.

Therry J, 19 May 1845

Source: Port Phillip Gazette , 21 May 1845

[XX] His Honor having taken his seat, the following jury was empannelled: T. Lane, F. McDonald, R. Ludlow, N. McLean, C. Laing, R. Leteus [??], J. Lush, W. McPherson, H. Legg, A. McLeod, H. Long, and M. Lynch.

Koori Kirrup having been placed at the bar, Mr. Barry, as standing counsel for the Aborigines, moved his discharge, [under] the 7 th section of the Habeas Corpus Act. He argued that although two sessions of Oyer and Terminer had passed, the prisoner had not been tried, though he admitted he had been indicted, but notwithstanding this, good cause must be shewn why he was not so.

His Honor said good cause had been shewn by the affidavits which were filed last session, when the trial was postponed. He would now adopt the same course as that pursued in the case of the King v. Pritchard , the prisoner having been arraigned on the indictment.

Mr. Barry. Perhaps the Crown Prosecutor will, in terms of the Habeas Corpus Act, allow the prisoner to go at large on his own recognizances in the sum of £500, to appear when called upon.

His Honor said, with respect to allowing the prisoner bail, he had received a letter from Mr. Assistant Protector Thomas, from which it would seem Mr. Thomas thought he (the Judge) wished to compel him to become bail for the prisoner. In this Mr. Thomas had quite misapprehended him, for he possessed no such power. He had merely thrown out the suggestion for Mr. Thomas to act as he thought best. The man at the bar was charged with a very serious offence, indeed the greatest that could be committed on society, and that this case might be brought to a proper issue. He had done all in his power since the case came under his cognizance to get an interpreter, but without success. Indeed the affidavits stated that it was impossible to make him understand the nature of the trial, and Mr. Thomas swore it was not possible to make him comprehend the nature of the proceedings. He was therefore resolved to adopt the course pursued in the case of the King v. Pritchard . After that had been determined upon he would see what then was to be done.

The Crown Prosecutor could not see how they could pursue any other course. He did not think Mr. Thomas had shown that zeal in endeavouring to instruct the prisoner that he ought to have exhibited. If the prisoner was set at large he would go to the country where he committed the depredation for which he now stood at the bar, and joining his tribe the consequences of his liberation would soon be perceived: aggressions on the property of those in that part of the district would be committed with impunity. One thing surprised him which was that in this and other cases, Mr. Thomas thought he had done too much already.

His Honor. The best course will be to arraign the prisoner first, and then empannel the jury to try whether he is of sufficient mental capacity to comprehend the nature of the proceedings.

The prisoner was then arraigned on an indictment charging him with the wilful murder of Donald McKenzie at Emu Creek, and being called upon to plead stood mute.

The jury were then sworn to try the following issue, whether the prisoner was of sufficient mental capacity to understand the nature of the proceedings, so as to make proper defence thereto, to comprehend the details of the evidence, and challenge any juror he might wish to object to.

Mr. Barry then addressed the jury for the prisoner. He observed that it was absurd to put the machinery of a court of justice in motion against a man who it was evident did not comprehend the nature of them. The affidavit of Mr. Assistant Protector Thomas was in his mind conclusive on the point. That gentleman swore that he could not understand him nor make himself understood. The language spoken by the prisoner was distinct from that spoken by any of the tribes he knew, so the jury would perceive it was quite impossible to communicate with him. He would call witnesses to prove this fact.

William Thomas. I am Assistant Protector of Aborigines. I know the prisoner at the bar. I have been in communication with him. I do not understand the language he makes use of. I cannot make myself understood to him, either in his own or the English language. I have made many efforts and reported to the Chief Protector that I could not understand him. I looked out for an interpreter, and succeeded in finding a man named James Dyer, who was on board a vessel. I accompanied Dyer to the gaol, and the prisoner seemed to comprehend him as a black did a bushman. I do not believe from the interpretation of that man that the prisoner is of sufficient mental capacity to comprehend the proceedings of this trial. I do not know where Dyer is now, he attended here one session. I cannot make him understand.

His Honor. That was the session before I arrived.

Cross-examined by Mr. Croke. Of course when I went into the gaol I spoke to him. I asked him how he did. He replied very good Mr. Thomas. I spoke to him about these proceedings. I told him he was to go to the court house. I do not believe he knows what the word trial means. I mentioned Mr. McKenzie to him. There was another black in gaol with him two months, but they could never understand each other. I could only learn one word of his language, which is culprie ; this is take to mean "kill," but I am not certain if such is the meaning.

By the Court. A very few words will make a black intelligent on a station, such as cut some wood, fetch some water, and mind the sheep, but I do not think Dyer could have made him comprehend the nature of these proceedings. I consider Dyer had too imperfect a knowledge of the language [to interpreter] enable the prisoner to understand the details of the evidence. I asked Dyer if he could make the prisoner understand, he said yes, I can make him understand. The prisoner might have understood the details had Dyer visited him daily.

Question from jury inaudible.

George Wintle. I am gaoler of the Melbourne gaol. The prisoner has been in my custody some time. I cannot make him understand more than a few words. John Bull, when he was in custody with him said he was a very stupid fellow. He knows he is brought here something about Mr. McKenzie. I do not think he is capable to comprehend the nature of the evidence, both from the dullness of his intellect, his age, and the impossibility of communicating with him in his own language, as to the nature of the trial.

By the Court. The extent of his knowledge of the English language is such as to express his wants, calling for bread and meat, and calling any person he knows by name, and has heard it repeated for a long time.

This was the case for the issue.

His Honor then charged the jury on the issue, stating that the present course was the one adopted in the case of the King v. Pritchard . If the jury considered the prisoner understood the details of the evidence the rest was easily done. The case of Esther Dyson , who was deaf and dumb, was somewhat analogous. To this the prisoner who was deaf and dumb, was indicted for the murder of her bastard child, and the issue tried there, was, whether the prisoner stood mute of malice, or by the visitation of God? The proceedings were conveyed to her by signs, and the jury found that she was mute by the visitation of God ? The jury would give the case their serious consideration, for to give the prisoner anything short of a fair trial, would be doing him injustice. Therefore, if the jury did not think the prisoner capable of comprehending the nature of this trial, they might then in their verdict state so. After about two minutes deliberation the jury returned a verdict, that the prisoner was not of sufficient capacity to comprehend the nature of the proceedings, from the impossibility at present of communicating with him in his own language.

His Honor. Well Mr. Croke, what are you now going to do with him?

Mr. Croke would propose that he be remanded until next sessions.

His Honor could not consent to the discharge of the prisoner at present. He stood there charged with a very serious offence, that of murder, and before he felt disposed to discharge him, he would communicate with the authorities, and give the matter further consideration. In England where there were asylums to receive such men as in the case of the King v. Pritchard, the prisoner was detained during his Majesty's pleasure. It was a matter of some importance to see what was to be done with the prisoner, and he thought it his duty to remand him, because if there was any hope of bringing him to trial, justice should be done. As Judge Willis said, that human law required human interpretation. He did not think they were here strictly bound by the Habeas Corpus Act , by the seventh section of which, the prisoner could be admitted to bail. Mr. Thomas in his letter had refused adopting the course he had suggested, and in one portion of his letter had stated, he "exceeded his instructions in preparing natives for trial, his duty being to protect them from cruelty and oppression [!??] ." One thing was certain, if the Protectors withheld that assistance they are supposed to possess, they would be frequently placed in the [position] they are now. He considered the white [position] of the community also required protection. Perhaps it was as well this case was to be remanded, to see what was strictly to be done with a man, standing as the prisoner did, without going through the mockery of a trial. Something must be done with him, it would never do to allow him to return to the scene of his former crimes. He (Judge Therry) scarcely knew any magistrate commit any native unless it was for a very aggravated offence. Under all the circumstances he should direct that the prisoner be remanded.

Therry J, 19 July 1845

Source: Port Phillip Gazette , 23 July 1845

[xx] The Queen v. Koori Kirrup. His Honor delivered the following opinion in this case. He said that with respect to the prisoner Koori Kirrup , he had entertained an expectation up to the present time of his being sufficiently instructed to be put on his trial. A certificate however had been furnished that morning to the Court by the Sub-Protector, Mr. Thomas, which held out little hope of that expectation being realized, through the agency of his communication with the prisoner, though he has now been some months in constant attendance at the gaol. The certificate was as follows:

Melbourne, 19 th July, 1845.

I hereby certify that I have attended the prisoner from the time he had been in gaol, and since the last sessions, daily, and am confident, without a knowledge of his native tongue, I shall never be able to make him competent to undergo his trial, or to comprehend the details of evidence given at the trial.

Signed, William Thomas, Sub-Protector.

The question then remained, what was to be done with him, either to be discharged under the Habeas Corpus Act , or keep him still in gaol? No doubt in strictness he is entitled to his discharge, and that if we subject the Aborigines to the punishment of the British law, it is but just that we should not withhold from him the right which British laws confer. It was maintained by an eminent British Judge (Mr. Justice Williams, a man remarkably jealous in guarding the liberty of the subject) in the case of R. v. Bowen , 8 Carrington and Payne , that though he had as great a respect as any man for the Habeas Corpus Act , he considered it but a human law, and that it must be humanely interpreted. The prisoner is indicted, but his trial must be subject to human contingency. If such, he would say, was the language and doctrine of a British judge, administering the law in the heart of civilized England, how much stronger is the claim to use and maintain the same language, when the duty of administering the same law devolves on one in a district which has only within ten years been rescued from a wilderness, towards one who is literally a savage of the woods, and when the contingency that operates as an obstruction to his being tried, is that, from the impossibility of holding communication with him, he is found incapable of trial?

Let it not be supposed, however that he should deem it necessary for the purpose of the prisoner's trial, that it should be necessary that he should understand the nature of his right to challenge any of the jury, or to understand the nature of trial by jury, or any of the [formes??] of a court of justice, for any purpose of this kind counsel, with which he is provided, could do all that is substantially requisite for the ends of justice in his defence. Indeed we cannot easily imagine any occasion in which the reasonableness of exercising the right of challenge in such a case can arise. But what he did maintain was, that it was necessary the prisoner should comprehend, substantially at least, if not literally, the details of the evidence given against him, for if he has not capacity of communicating with any person, the trial of such a person is the trial of one incapable of defending himself, which is alike abhorrent to the principles of justice and humanity with distinguish the law of England.

He cannot, then, now be tried, and on coming to the consideration of his discharge, when reading the depositions, and being informed of the atrocious crime they disclose, he felt that both with regard to the prisoner's own safety and the safety of others, he could not reconcile it to his sense of duty to consent to his discharge. It then only remained for him to keep the prisoner in gaol, until either by the interference of the Executive Government, or more properly by some legislative enactment, including the present case, to deal with this class of prisoners, who are found incapable of trial.

The Chief Protector (Mr. Robinson) continued to make every exertion to procure an interpreter, and had submitted to his perusal, letters which he (Mr. Robinson) had received from persons residing at the Geelong, but as yet no satisfactory assurances were held [but??][out??] of an interpreter being provided. If an interpreter can be procured he must be tried. If not, he knew not how the case could be satisfactorily dealt with, except by some such interference as he had now suggested.

The court then adjourned sine die .

Therry J, 21 August 1845

Source: Port Phillip Gazette , 23 August 1845

[xx] The Queen v. Koori Kirrup. Mr. Barry as standing counsel for the Aborigines, applied for the discharge of Koori Kirrup, on the ground that he had been in custody for several months.

His Honor said, he had already stated the reasons why he could not consent to the discharge of the prisoner, and he hoped the legislature would soon find some remedy to meet the emergency of the case, and he could not say anything more on the subject, until he received a communication from head quarters.

Mr. Barry presumed he was remanded for further instruction.

His Honor said, such was the case.


Therry J, 17 November 1845

Source: Port Phillip Gazette , 19 November 1845

[xx] This being the first day of the criminal assizes, of Oyer and Terminer, and general gaol delivery. His Honor took his seat at 10 o'clock, the court having been opened with the usual formalities. ...

The Queen v. Koori Kirrup. His Honor observing Mr. Barry in court, said he would mention a circumstance relative to a case which in all probability Mr. Barry would have to make some application in before the rising of the court, he meant that of the Aboriginal Koori Kirrup, who had for some time past been in custody, and as he had already so repeatedly stated why he had caused the prisoner to be detained, he did not think it necessary to recapitulate his reasons. He had placed himself in communication with the Sydney Judges on the subject, as he was empowered to do so by the Act, and feeling very anxiously about the case, and he was now prepared to state what was the opinion of their Honors at Sydney on the case.

His Honor then read the opinion of the Sydney Judges, which went to shew that the jury having found Koori Kirrup was not of sufficient capacity to comprehend the nature of the proceedings, he could not be tried whilst remaining in that state, and the remedy was with the legislature. Upon the receipt of their Honors the Sydney Judges, he had instituted the necessary enquiries, and from a certificate he would read. It would appear that the prisoner still remains in a state of incapacity, and therefore could not be put upon his trial. As the Protectors were in court, he could only express a hope that those gentlemen would continue their exertions, until he was sufficiently instructed to understand the nature of the proceedings. Until then he could not be tried.

Published by the Division of Law, Macquarie University