[Aboriginal defendant - dying declaration - murder - Aboriginal evidence - Aborigines, legal status - Aboriginal trackers - confession - police, Border Police - Aborigines, interpreters - Lachlan River - Ullabulong]

R. v. Billy

Supreme Court of New South Wales

Dowling C.J., 4 November 1840

Source: Sydney Herald, 5 November 1840[1]

Billy, alias Neville’s Billy, a native black from the Lachlan, was placed at the bar, when William Jones, a holder of a ticket of leave, an umbrella maker residing in Sussex-street, was sworn in as interpreter, who deposed that the language of the prisoner was the same as that spoken on the banks of the Castlereagh river, about three hundred miles from Sydney, where he had been about eight years, and had learned the language.

The substance of the charge was then read over by his Honor as follows.  Billy, you are charged with killing a white man named John Dillon at Ullabalong, by spearing him, on the 29th of February last; which being interpreted to him, he pleaded not guilty, and asserted that it was other blacks who killed Dillon.  He was then told of his right of challenge but said he had no objection to any of the Jury.

The Attorney General then suggested the propriety of assigning counsel to the prisoner, which his Honor acceded to, when Mr. Broadhurst was sent for to conduct the prisoner’s defence, and Mr. George Allen assigned as Attorney.

After the Jury had been sworn in, and the indictment had been read, laying the murder as having been committed on the 29th of February, and on the 1st of March.

The Attorney General opened the case, by stating there were no cases of a more painful description than those against the aborigines, who, from their ignorance of our language, manners and customs, as well as of our laws, could only take their trial at a disadvantage, as the state of the law prevented them from calling on others of their tribe to give evidence in their defence.  It also frequently happened in cases of aggression by the Aborigines, that the first offence was given by the whites, by their carrying off the gins of these blacks and otherwise annoying them; but in the present instance he was extremely happy that no such excuse could be set up; on the contrary, it would be given in evidence that the deceased had been remarkably kind to the blacks and in particular to the prisoner, to whom he had given bread and milk for breakfast on the same morning, just before he speared him, and it would also be shown, that there was particular kindness shown to the prisoner by another of the white people, as he had got his name of Neville’s Billy from some clothing having been given to him by a white man.

Wm. Jackson, of the border police, sworn. - I live at Bennalong, with Mr. Cosby, Commissioner of Crown Lands, about 24 miles south from Yass; I have been 16 months in the border police, and have had much intercourse with the blacks; I can neither speak nor understand their language.  I apprehended the prisoner as Neville’s Billy on the 5th of April, at Ullabulong, about 240 miles from Sydney, and beyond the boundaries.  On the 29th of February I was at Yarrabendri, Mr. Oakes’s station, when I was told that a man had been speared at Ullabulong; I went there, and found a wounded man in a skillion; he was bleeding, but able to speak; he was John Dillon, hut-keeper to Mr. Armstrong of Parramatta.  I had been at that station about a fortnight before, and saw about 100 natives at that place.  Mr. Cosby was then present; we knew that they were wild blacks, and when Captain Ovens’ men were bringing the cattle up the river they were accused of rushing the cattle.  When I saw the deceased he was perfectly sensible, and told me in the presence of several persons that he was done for, and showed me a wound bleeding under his left armpit.  It was about eleven inches deep from the portion of the spear which had been in it, and it was so severe that whatever water he drank ran out at the wound.  The deceased told me the prisoner came to the hut about eight, a.m., and asked for bread and milk, which was given him, and the prisoner eat[sic] it, after which another black came up and demanded more bread and milk, on which the deceased told him there was no more in the hut, and while he was latching the hut door, the prisoner speared him through the window of the hut under the arm-pit of the left arm, and then the person who speared him looked in through the window and said, “ah, ah!” I believe he said it was Neville’s Billy who speared him; that he was the black whom Jackey Neville, a settler near Bathurst, had given a shirt to; after telling the circumstances of the spearing, the deceased made his will, and left £12, one half to the priest, and one half to the poor; the man died on the following day, when I and another border policeman, with about six or seven stockmen, went in search of the prisoner, with two tame blacks, and were out for ten days but got no intelligence of him; an old tame black named Old Ben offered to bring him in on the 5th April; the prisoner was pointed out to me; I took the spear and going up to him, said, “you Neville’s Billy?” he said yes; I said, showing him the spear, “first time you make light of this spear?” but he gave no answer; a stockman who was present then put the same question, on which the prisoner acknowledged that he had seen it before; when I asked him his name, he said Neville’s Billy; all the people present seemed to know him, and he to know them, as he spoke to them, and they gave him bread and milk; he was taken about two hundred and forty miles from Yass, at Mr. White’s station; the prisoner had a large sticking knife, which he concealed in some cloth about six miles from the station;  I saw him laugh, and thinking it strange I looked at him and saw the knife in his hands; he was handcuffed and had managed to get it while we were saddling our horses; I took the knife from him, and was told at Tomanbilly, by an old servant of Mr. White, that it was the butcher’s knife used at Mr. White’s station.   When the party first set out after the funeral, the two same blacks told us that he had trailed a bush after him, which prevented them from tracing his footsteps.  When taking the prisoner to Yass, at Mr. Shepherd’s station, I said to prisoner, “what for you tumble down Waddy Monday?” (the black name given the deceased from his having a wooden leg) when he said that Billy, Paddy, Puckamulloi, Woagli, and Pialla, told him to kill the deceased.  When he asked the prisoner why he had killed Dillon, he told him he had better tell the truth; that was the only incitement held out to him to tell me what I have stated.

Cross examined - The deceased was about 31 years of age; the nearest medical aid that could be obtained was from Bathurst; it was about ten in the forenoon of the 29th February, when I saw Dillon wounded; I saw him several times during the day; he was in great agony, was swelling very much, and was turning black.  The deceased, after he was speared, heard the blacks get up on the roof of the skillion, but some horsemen arriving a few minutes after, he said that he thought the blacks had seen the dust, and they accordingly made off.  The deceased told me that the feathers had broken in his side when pulling out the spear.  Old Ben told me he did not know the other black.  I do not know of my own knowledge that the prisoner is Neville’s Billy.

(The prisoner said that this witness had told lies of him.)

William Power, another Border Police-man, corroborated the previous witness, and stated that the deceased told him he had only been six weeks at the station, and never had quarrelled with the blacks; this witness stated that the prisoner could speak English pretty well, and had told the witness he had been to Bathurst some years ago, and had seen some men hanged, and wanted to know if he (Billy) would be hanged in the same way.  The window was on the same side of the hut in which Dillon was speared, and the window was about fourteen inches square and about eight feet from the door; the prisoner was apprehended about seven miles from the hut where Dillon was speared; the deceased was a free man.

The Attorney-General stated that there was another witness but he had not been able to get a summons served on him; he therefore closed his case.

Mr. Broadhurst for the defence, complimented the Attorney-General on the feeling manner in which he had opened the case, and adverted to the strong feeling which was known to exist in the Colony against the blacks; he also read that part of the indictment which stated that the prisoner had been excited and moved by the instigation of the devil, a being whom the aborigines have no more knowledge of than they have of the existence of the true God.  He also objected to the verbal recital of the dying man’s declaration being received in evidence, which he contended ought to have been produced in writing, and taken before a magistrate, who ought to have sworn the deceased to the truth of it.  He also contended that the discrepancy between the testimony of the two witnesses, as to the one swearing that the deceased had said there was but one black with the prisoner at the time of the spearing; whereas, the other swore that he had said there were several others returned with the prisoner; he also mentioned that the deceased had not seen the prisoner spear him, as that was impossible from the position of the door and window, and the position in which the deceased was when speared; he also alleged that the deceased had been speared by one of the strange blacks, as the prisoner had received acts of kindness from Dillon which had been refused to the others; he denied that the prisoner had ever conceded that the spear was his, all he had been asked was if he had ever seen the spear, and he had told them that he believed he had, and it was probable that he had seen it in the hands of some of the rest of his tribe, and concluded by calling on the Jury to try the case dispassionately and without prejudice.

His Honor, in putting the case to the jury, said, that they were a jury of intelligent, British subjects, called on to administer justice to a savage, who was ignorant of the language, laws, and customs of civilized life; and called on them to mark the situation in which the prisoner and the judges were placed in such trials; by a fiction of law he was amenable to British law.  He was accused of the murder of a British subject, a white man, one of a race of men who had seized on his native land; he was by fiction of law, a British subject, and as such was entitled to be tried by his peers, his equals; were the jury his equals?  Did they know his language, his habits, or his customs?  He took his trial under many disadvantages, so much so, that he was not in a situation to conduct his own defence - he could not even instruct his counsel; he might have witnesses, but they, by a legal technicality, not being christians, would not be admitted to give evidence, and therefore it was that he said the prisoner took his trial under great disadvantages; it was in fact a one-sided trial, and therefore, he called upon the jurors, as Britons and Christians, to lay aside all prejudices, and give every attention to the evidence, which was not of that king usually brought to support such cases; it depended entirely on the frail memory of two illiterate men, who had, to a certain extent, given different details of the same transactions - which fact alone was sufficient cause for the jury giving their utmost attention to the evidence by which they were to decide the guilt or innocence of the prisoner.  In reading over the evidence, His Honor lamented that the witness Fitzgerald had not been found, which was no fault of the Crown prosecutor; he also observed, that some of the stockmen, who were in the hut when the deceased made his statements, if brought forward in evidence, might have placed some part of the case clearer before the court.  The evidence respecting the prisoner owning the spear was dark, and there was no proof of a satisfactory description that the prisoner was the man whom the deceased called Neville’s Billy; he also warned the Jury against receiving any unfavourable impression from the prisoner, after being apprehended, taking the butcher’s knife, at Mrs. White’s; also that they were to receive the prisoner’s statement, about his being told by the five other Aborigines, with discrimination to see whether it had been made of his own free will, or extracted from him by the fear of punishment or the hope of reward; as in case it had not been voluntarily given, it could not be used in evidence against him; His Honor called on the jury to give a fair interpretation to the words “it will be better for you to tell the truth.”  It was not a proof of murder, that a man was seen with a bloody sword in his hand - it was merely a circumstance which might raise suspicion; he also told the jury to give the prisoner full credit for his statement, as far as it went, that he knew a little English, and that a great deal of what had been said by the first witness was not true.  His Honor remarked it was a singular circumstance that the witness Power, a man who had been only 23 months in the Colony, under sentence, should be employed in the Border Police: and put it to the jury whether the deceased might not have been in such agony at the time the witnesses examined him, and so stupified by their questions, that he did not know what they were saying or what he answered them.  And cautioned the Jury against giving credence to testimony which was at variance.  He had felt it his duty to make these observations to the Jury, not to influence them in their verdict, but to lead them cautiously to examine and scrutinize the evidence.  If the case had been that of a white man, it would have assumed an entirely different appearance.  He however left it to the Jury to say whether they had had a full and fair account of the confession of the deceased, and whether the identity of the prisoner had been made out, and whether there was proof that the prisoner was the person who had thrown the spear; and expressed a hope that if they had any reasonable doubt as to the evidence they would, from the circumstances of the case, give the prisoner the benefit, as he had been brought to trial under circumstances which were peculiarly disadvantageous to him, while at the same time the evidence was not of that description which is usually adduced even where the dying declaration of the deceased is put in evidence, to support the charge.  If the Jury had any reasonable doubt on the evidence, from the peculiar circumstances under which the prisoner had been put on his trial, and the loose kind of evidence which had been given against him, they would of course give him the benefit thereof.

The Jury retired for about half an hour, and returned a verdict of guilty.

The prisoner was remanded.

Dowling C.J., 7 November 1840

Source: Sydney Herald, 9 November 1840[2]

Billy, otherwise Neville’s Billy, you, a wild aboriginal native of New South Wales, having been convicted by a jury of civilized Englishmen of the crime of wilfully murdering one of their countrymen, are now to receive the judgment of the white-man’s law for your offence.  I cannot persuade myself that you distinctly understand one word of what I am now addressing to you; but, I go through the forms prescribed by our Courts of Justice on solemn occasions like the present, rather that your peculiar anomalous position may be fully appreciated and duly considered by those who are finally to determine on your fate, than from any idea that it can have any effect on your benighted mind.  One of the wild children of the woods, and brought from a district where the country is just in the same state as it came from the hands of nature, you, not having the fear of God before your eyes, but being moved and seduced by the instigation of the devil, did, of your malice afore-thought, feloniously murder John Dillon, a white man, by piercing him with a spear.  It would be idle to suppose that this technical language of the Englishman’s law could be intelligible to the mind of an untutored wandering savage, who “sees God only in clouds,” and “hears him only in the winds.”  That you destroyed the life of John Dillon is a fact which, I think, is beyond all moral doubt; but whether the deed was committed under that sense of religious and legal responsibility to which your white brethren are amenable, is a question which I persuade myself may be truly answered in the negative.  Ignorant however as your are of revealed religion, and uninformed of the conventional laws of civilized man, still you must be regarded as an accountable being for acts which are contrary to the law of nature - that first principle which enters into the very existence of all sentient beings.  The love of life must be implanted in your own breast, and you must be sensible of its value in the estimation of your fellow creatures.  So long, therefore, as you are to be regarded as a rational creature, so long must you be held accountable for the invasion of a right imparted to all men by the God of nature.  It was made manifest on your trial, that you were an intelligent person, and endued with reasoning faculties; otherwise I could not have submitted you to the responsibility of the law under which you have been convicted.  The principle on which this Court has acted in the embarrassing collisions which have too frequently arisen between the aborigines and the white Europeans, has been one of reciprocity and mutual protection.  On the one hand, the white man (when detected, which I fear seldom happens) has been justly visited with the rigour of the law, for aggressions on the helpless savage; and on the other, the latter has been held accountable for outrages upon his white brethren.  As between the aborigines themselves, the Courts have never interfered, for obvious reasons.  Doubtless, in applying the law of a civilized nation to the condition of a wild savage, innumerable difficulties must occur.  The distance in the scale of humanity between the wandering, houseless man of the woods, and the civilized European, is immeasurable!  For protection, and for responsibility in his relation to the white man, the black is regarded as a British subject.  In theory, this sounds just and reasonable; but in practice, how incongruous becomes its application!  As a British subject he is presumed to know the laws, for the infraction of which he is held accountable, and yet he is shut out the advantage of its protection when brought to the test of responsibility.  As a British subject he is entitled to be tried by his peers.  Who are the peers of the black man?  Are these, of whose laws, customs, language, and religion, he is wholly ignorant - nay, whose very complexion is at variance with his own - his peers?  He is tried in his native land by a race new to him, and by laws of which he knows nothing.  Had you, unhappy man! had the good fortune to be born a Frenchman, or had been a native of any other country than your own, the law of England would have allowed you to demand a trial by half foreigners and half Englishmen.  But, by your lot being the lowest, as is assumed, in the scale of humanity, you are inevitably placed on a footing of fearful odds, when brought into the sacred temple of British justice.  Without a jury of your own country men - without the power of making adequate defence by speech or by witness - you are to stand the pressure of everything that can be alleged against you, and your only chance of escape is, not the strength of your own, but the weakness of your adversary’s case.  Surrounded as your trial was with difficulties, every thing I believe, was done, that could be done, to place your case in a proper light before the jury.  They have come to a conclusion satisfactory, no doubt, to their consciences.  Whatever might be the disadvantages under which you laboured, they were convinced, as I am, that you destroyed the life of Dillon; and as there was nothing proved to rebut the presumption of English law, arising from the fact of a homicide being committed by you, they were constrained to find you guilty of murder.  There may have been circumstances, if they could have been proved, which would have given a different complexion to the case from that of the dying declaration of the deceased, communicated to the Court through the frail memory of two witnesses, who varied in their relation of his account of the transaction.  This declaration, so taken, was to be regarded as if made on oath, face to face with your accuser - and, although you had not the opportunity of being present at it, and of cross-examining the dying man, yet, by law, it was receivable against you.  Doubtless, there were other circumstances in your own subsequent conduct, which (assuming that they were proved in so satisfactory a manner as to be, beyond all doubt, true) tended to confirm the dying man’s statement.  Your recognition of the broken spear as being your own - your assertion that you committed the act, at the instigation of some of your tribe - your subsequently arming yourself with a knife - your allusion to the fate of some white men who were executed at Bathurst some years since - and the proof that you could speak and understand more of the English language than you chose to admit, were circumstances which must have weighed against you in the minds of the jury.  They having, therefore, pronounced you guilty, I have no alternative but to award the sentence of the law.  Your case will come under the anxious review of the Executive Authorities, and your fate, whatever it may be, will be influenced by a careful consideration of what the interests of public justice imperatively demands.  The sentence of the law is, that you, Billy, otherwise Neville’s Billy, be taken hence to the prison from whence you came this morning, and that you be taken thence to the place of public execution, on such day as His Excellency the Governor shall direct and appoint, and that you be there hanged by the neck until your body be dead - and may God Almighty have mercy on your immortal Spirit!