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Original Documents on Aborigines and Law, 1797-1840

Document 87

Original Document 87

Notes relative to preliminary proceedings in the trial of Kilmeister and Ors. Burton 's notes of the hearing.

[759]  Mem[orandu]m. The Queen ag[ain]st Kilmeister & others - made 27th Nov[embe]r 1838. On the prisoners being placed at the Bar in Court yesterday, the Att[orne]y Gen[era]l filed an Information containing 20 counts - upon which the prisoners' Counsel prayed for time to plead - I asked the Att[orne]y Gen[era]l if he had any obj[ectio]n to urge to that request - who ans[were]d no! & that he the more readily acceded to it inasmuch as it was his intention to move the Court tomorrow for the postponement of this trial until a subsequent Sessions - On the ground of a publication in one of the newspapers - tending in his opinion to prevent? an impartial trial of the Cases. I urged in the AG to be guided   by a sound discretion in his proceed[ing]s - & again at Chambers the same.

            I wrote hereupon a note to the CJ - requesting that a full Court might be permitted for the purpose of hearing this matter -

            The Judges met at Chambers this morning just at the hour of ten - when I found them opposed to this Course - Mr. Justice Willis especially - who said that he did not see the necessity of the Court being assembled to try an interlocutory point when they were not assembled for the trial of the case & when one Judge had volunteered[?] do so.   He expressed so decided an unwillingness to accede to my request - and the whole tenor of his observation was of so unkind a nature - and the CJ altho' himself willing to join me - said that he did not

[760] Several cases have been found in reference to the limits of the Supreme Court of offences committed by the Blacks upon the convict stockmen of the settlers at distant stations, which it is to be feared were in some measure occasioned by the course pursued by persons of that class towards them, or if these were wholly innocent of giving occasion to the offence in any particular instance as they have constantly asserted themselves to be, then such instances shew the danger to the white farmers as may be exp[erience]d from the Blacks.

In one of these cases tried before Chief Justice Forbes on the 3 rd June 1825 it was sworn that a Black commonly called Divil Divil had accomp[anie]d two stockmen into the bush in search of some stray cattle, that having been in their company for two nights & days, that on the third night the Black taking occasion of the absence of one of the stockmen in pursuit of a Kangaroo, without any previous quarrel or dispute & after partaking of his food & being till that time good friends he suddenly struck him such blows with his tomahawk & cut him very badly about the neck & then[2]  fled taking with him their rations and a fowling piece. The black in his defence alleged that the stockman had loaned him a jacket & he went with him after the cattle but at the end of the day he asked for the jacket & wanted to leave them but the prisoner compelled him to proceed threatening if he did not he could shoot him, for this he was angry & struck him with the tomahawk -

In another case tried before the same judge on the 24 th of Novr 1827 a Black man named "Tommy" charged with the murder of a shepherd at Bathurst was convicted of the offence and executed. The circumstances attending it were thus stated by the principal [?] (Copy Onion's[?] evidence from Aborigines page 6 to the end page 10.)

In another case tried before the same judge on the 20 th of August 1830 a Black man named "Broger" charged with the murder of a wood cutter at Shoalhaven was convicted of that offence & executed, the circumstances attending it were thus stated by the principal [?] (Copy James Hicks' evidence from case book

[761] in the necessity of the cases proposed by me that I


Trial of Kilmeister

& others by me


1838 Novr 27

Notes relative to preliminary

proceedings in the case

No. 87


[1] We are not certain of the accuracy of the transcription. This is Burton's handwriting at its worst. Two of us transcribed this document independently, and we then made a composite of the two versions. For one thing, the three pages do not follow on from one another, so this may not have been one document.

If any reader can suggest a better transcription, please let us know.

[2]  Deleted: that his comrade returning found the black who

Published by the Centre for Comparative Law History and Governance of Macquarie University, and State Records NSW