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

R. v. Ningollibin [1845] NSWKR xxx

Aboriginal defendant, offence against another Aborigine, Aborigines, capacity to plead, murder, bail, habeas corpus

Supreme Court of New South Wales, Port Phillip

Therry J., 16 January 1845, 14 March 1845

Sources: Port Phillip Patriot, 17 January, 17 March 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. ...

Nilgollibin, alias John Bull, an aboriginal native, was indicted for the wilful murder of an aboriginal native, named Booby, by casting and throwing at him a spear, at Keilor, on the 12th December, 1844.

His Honor said, a jury must be impanelled to try the issue as to the prisoner's mental capacity.

The following jury was then impanelled: R. Grice, (foreman,) W. Green, J. Howe, J. Haskell, G. Henderson, J. Greening, J. Goldie, A. Grover, W. Howard, G. Greeves, E. C. Greene, and P. Hurlstone.

Mr. Croke wished to know if E. C. Greene was a naturalized subject.

Mr. Greene must decline answering the question as he had certain privileges pending, which might be affected thereby.

Mr. Barry said, if Mr. Greene refused to answer the Crown Prosecutor could impanel a jury to try the issue.

His Honor. The question of the Crown Prosecutor is a very proper question as it is necessary to know whether the issue about to be tried is properly tried. The question must be answered.

Mr. Greene said, he was naturalized by residence.

Mr. Croke said, if he was fully naturalized by residence, he was an alien, and he should object to him.

Mr. Barry said, Mr. Greene need not disqualify himself.

His Honor. Perhaps not, but he had better stand aside.

Mr. Jasper Hall having been substituted for Mr. Greene, the jury were sworn to try the following issue, "whether the prisoner is of sufficient mental capacity to understand the nature of the proceedings, so as to make a proper defence, to challenge any juror he might object to, and comprehend the details of the evidence."

Mr. Barry said, although this description of enquiry might be uncommon to them, it was highly important to the prisoner at the bar, and frequently occurred in courts of justice where the prisoner was supposed to want knowledge, or the organs of knowledge were wanting, or from any other defect.

There was a case in the books, of Esther Dyson, a woman who was deaf and dumb, and the learned judge who presided, directed a similar issue to be tried, and out of which arose three points for the consideration of the jury. 1st. Whether the person stood mute of malice; that is, whether having the knowledge she refused to plead. By the common law, before it was humanised, a party having the capacity and refusing to plead was put upon his back, and a heavy stone placed upon his chest, and while in that position was fed with the coarsest bread, until he did plead or died. 2nd. Whether being able to speak, the prisoner was able to plead, that is, was he aware of the nature of the plea, and 3rd. Was the prisoner of sufficient intellect to comprehend the proceedings; that was the most important for their consideration for in it was involved the prisoner's right to challenge any of the jury to whom he might object, and whether he was sufficiently acquainted with English jurisprudence to be aware that he had committed an offence against the law; and, whether he was enabled to furnish legal evidence for a defence.

In this case they would recollect, the prisoner himself was an aboriginal native and that the aboriginals were incapacitated from giving evidence in a court of justice, of which incapacity the prisoner probably was not aware. He would caution them to avoid the solemn farce of trying the prisoner who was as ignorant of the proceedings as if he had been born deaf, dumb, and blind. In the cases of Dyson and Pritchard a similar course was taken, and the learned judge remarked that he would not lend himself to any proceedings where a prisoner was not capable of pleading and making a proper defence.

William Thomas (by Mr. Barry.) I am one of the assistant native protectors; I know prisoner, he has been occasionally at my camp, near Melbourne, during the last five years. I have only seen him occasionally during that period; his habits were the same as those of other natives; since he has been in custody I have endeavoured to explain these proceedings to him, and I consider him capable of understanding the outline of them; he knows what the jury are impanelled for; I should say, he understands the nature of the proceedings, so as to make a proper defence, as far as his semi-civilized state will admit; I think he is now as far as the instruction I have given him, of sufficient intellect to be capable of comprehending the proceedings, with the previous qualification; I believe he understands what he is charged with; I am prepared to swear that, from the prisoner's advanced state of civilization, he can comprehend the course of proceeding of the trial; he has sufficient mental capacity to challenge any of the jury to whom he may object, and to comprehend the details of the evidence, which I can communicate to him.

Mr. Croke had no questions to ask Mr. Thomas, he was quite satisfied with the evidence.

His Honor, in charging the jury, said, a similar course had been taken last sessions with the prisoner, when the jury found that he was incompetent, upon which he had ordered the prisoner to be remanded, to be instructed in the nature of the proceedings. He thought trying the present issue, the safer course, being one which was taken by two of the most eminent judges who ever presided on the English bench, in the cases of the King v. Pritchard, and the King v. Dyson, tried before Baron Alderson and Baron Parke. It was important to a person situated as the prisoner was that, he should be aware of his right to challenge any of the jury to whom he might object, as they might be swayed by private pique or influenced by sinister motives; he had, therefore, adopted the test adopted in other instances, which he had thought better than taking any new course. The evidence of Mr. Thomas was very strong upon these points, and if they were satisfied the prisoner possessed that capacity the trial must proceed.

The jury, without retiring, found their verdict in the affirmative.

Upon the application of Mr. Croke the prisoner was put aside for the present, a material witness not being in attendance.

Ningollibin, alias John Bull, an aboriginal native, was indicted for the wilful murder of Booby, an aboriginal, by casting and throwing at him a spear, at Keilor, on the 12th December, 1844.

The prisoner, whatever his mental capacity might be pleaded not guilty in a loud voice, and in a remarkable good English accent.

The deceased, Booby, was an aboriginal, aged about 16 years, and resided at Mr. Foster's station at the Pyrenees. Deceased came to town in company with the draymen belonging to Mr. Foster's drays, and while in town, prisoner was continually on the look-out for the deceased, giving it as his opinion that Booby "lived with too much white fellow;" Booby expressed his fears of him, and the draymen, with the view of making them friendly, gave the prisoner some money, who shook hands with deceased. The drays, in company with Booby, who was seated upon one of them, left town in the afternoon; prisoner passed the drays near the burial ground, at Mayne's bridge, and came up to the rear of the dray on which deceased was seated at Keilor. He asked Booby for some tobacco, and the boy took off his cap and gave it to him. The prisoner, watching his opportunity, thrust a spear into the deceased, which penetrated the back of the deceased, and came out at his chest. The prisoner then ran off and joined a number of blacks who were seen hovering about amongst some trees on the side of the road. Booby died three days after the wound was inflicted.

In defence, Mr. Thomas the assistant protector deposed, that the spear with which Booby was wounded was not of the same description of wood as that used by the tribe to which the prisoner belonged.

Sergeant Bennett of the Black Police deposed to having apprehended a black named Waradalla, who bore a strong resemblance to John Bull, of the Buninyong Tribe, charged with the murder of Booby, who managed to escape from him, before which he admitted to him that he murdered Booby. The reason assigned was, that Booby was no good as he belonged to a far off tribe, and was "murray stupid." He described going to a dray and asking for tobacco, which the boy gave to him, and then he speared him and ran away. He knew John Bull, who was not guilty of the murder. Witness was of opinion the spear with which Booby was murdered was made of the wood used to make spears by the Buninyong tribe; informed Captain Dane with full particulars of the escape of Waradalla and his confession; was to have gone to apprehend Waradalla, whom he believed to be with Mr. Tuckfield's blacks, but was countermanded by Captain Dane; knew prisoner was in gaol on this charge; informed the Chief Protector on the 4th March, and was subpoenaed on the 8th; Worndella told witness he had a shirt on at the time the murder was committed; Worndella had long hair, whiskers, and mustachios, and was painted white in the face when apprehended in January.

The jury returned a verdict of not guilty. Discharged.

Published by the Division of Law, Macquarie University