[Aboriginal defendant - stealing, cattle - Aboriginal trackers - Aboriginal evidence - Aborigines, legal status - Aborigines, legal representation - Macquarie River]

R v. Dundomah and others

Supreme Court of New South Wales

Dowling C.J., 9 November 1840

Source: Sydney Herald, 10 November 1840

Seven Aborigines from the district of Macquarie, were placed at the bar on a charge of cattle stealing.  Their names were Dundomah, Tommy Boker, Benjamin, Jemmie, Tommy Bang Bang, Carbon Mark, and Murramundong Simon; when called on to plead, each of them denied the charge, except Tommy Boker, who said the beef was good.

The Attorney-General suggested to His Honor the propriety of assigning Mr. Broadhurst as Counsel for the prisoners, on which that gentleman was sent for. The Attorney-General further remarked, that cases against the Aborigines were now of so frequent occurrence, that it would in his opinion, be proper for the Court to assign standing counsel for the Aborigines, when brought before it on criminal charges. His Honor thought that the suggestion was a very fair one.  The messenger returned and informed the Court, that Mr. Broadhurst was not at home, on which His Honor sent for Mr. Purefoy.  The prisoners were then informed, that counsel had been sent for to speak for them, but they made no answer.  They were afterwards asked, if they any objection to either of the Jurors, and made answer “they would all do.”

Mr. Purefoy having arrived, the indictment was read, which charged the prisoners with having killed two head of cattle at “Bang Bang” with intent to steal the flesh; a second count charged them with having stolen the cattle.

The Attorney-General in stating the case to the Jury, said that the aborigines being acknowledged as subjects of the British Crown, the same law applied to them as to the whites; but it must be evident, that when they came to take their trial, they did so under great disadvantages, as the only witnesses they could produce were the members of their own tribe, who not being christians could not be admitted as witnesses; he also stated that from information which he had received through Mr. Keck, he had reason to believe that the prisoners were the wildest blacks that had ever been brought to trial, they had but little knowledge of the rights of property, and before their apprehension, had comparatively little communication with white men, as the quarter of the colony they came from was but thinly peopled with whites.  It might be that the prisoners had considered themselves justified in taking the cattle which the whites had brought to their land, and which had driven off their kangaroos and wallaby, but still the law applied to them as well as to the white.  It was well known in the neighbourhood where the prisoners had been taken, that for a considerable time, the settlers there had been subjected to serious losses by their cattle being speared, but since the prisoners had been taken into custody, these depredations had not been r[e]peated, which was a circumstance that went [a] considerable way to show that the prisoners had been parties to the rushing and killing of he[sic] cattle.  He then called.

Mr. John James Allman, who said, - I am Commissioner of Crown Lands at Wellington.  The blacks are very numerous on the Macquarie River, particularly in the lower part about one hundred and forty miles from Wellington, or three hundred and seventy miles from Sydney; I apprehended the prisoner in July last; they are part of the Bang Bang tribe mixed with the “Harris Mount” tribe; there were about two hundred and fifty or three hundred natives present when I took the prisoners, on information that they had been spearing the cattle; I went with four Police Men to Bang Bang, and got the assistance of Mr. Wm. Lawson, and another gentlemen - I also engaged a very intelligent black boy; we all set out in search of the tribe, and came to a water hole where we found the head and hide of a bullock, which had been recently slaughtered by four spears being thrust into it - I knew it was a bullock from the size of the head and hide; it was a full sized bullock; the brand had been carefully removed from the hip of the hide; we searched about and got on the tracks of the blacks, they had gone down the creek about three miles from the water-hole; we came to where they had sat down, made fires and roasted the flesh; there were several remains of the carcases with a number of unfinished spears lying about; the fires were still smoking; about ten miles farther, we found that they had left the creek and gone off at an acute angle; we came upon them about four miles farther on, we sneaked on them, and heard the gins calling out to the men; we then put the horses to the gallop and rode into the middle of the tribe; we found they had a very considerable quantity of beef with them; I also found the heads of two calves with them; I then selected the seven prisoners on information which I had previously received; Jemmie was the only one who made resistance; the gins were apart from the men when we came upon them, and had most of the arms of the men with them; we got between the women and the men, and of course prevented the men from getting their arms; I understood best what was said by Jemmie; I asked him why he had been killing cattle; he told me that the Myall fellows, meaning the “Mount Harris tribe,” called the Bee Bee Jibbery tribe, had done it; he denied having killed any cattle; this information I got through the black boy whom I had hired as a guide.

The Attorney-General said he would not be able to carry the case much farther, but he thought there was evidence enough to convict the prisoners on the first count.

His Honor asked if the Attorney-General thought there was evidence on which to convict a white man?  The Attorney-General said he thought there was; he then called Mr. Arthur Wiggins, the Superintendent of Captain Raine, whose head station was at Narramine, on the Macquarie, where he had seen all of the prisoners, who had according to information been slaughtering the settlers’ cattle; the party got information of the tribe being at Killindoon; they were traced farther about four miles, when between three or four hundred of them were come upon.  This witness was called on by Captain Allman to pick out eight of the most influential of the blacks, when he selected the prisoners, with another black who could speak English very well.  It having been proved by the testimony of a white man that the eighth man had only joined the tribe on the preceding day, he was afterwards discharged.  The prisoner Carborn Mark, when apprehended, had a shin of beef in his possession; the witness thought he was very much altered and could not swear to him, he knew Jemmie, Dundomah, and Micky.  The prisoners said that the Myall tribe had killed the cattle, and the prisoners were only eating the flesh.  There had been a great number of cattle missing before the prisoners were apprehended, viz. - bullocks, cows, and calves, but the witness had lost none since the prisoners had been taken, but he had seen other cattle speared lying on the runs since the prisoners were taken.

Mr. Purefoy submitted that there was no evidence to fix the crime on the prisoners.

His Honour in putting the case to the jury, left it to them to enquire, what proof there was that the prisoners had killed the bullocks, or that they had even feloniously become possessed of the flesh found on them when apprehended, or that they knew it to have been stolen; he submitted that they might be liable to an indictment for that, but from all that appeared, the cattle might have died at the waterhole; he also said, that considering the loose character of the evidence against the prisoners, he should not like to have the pressure of a verdict of guilty on his mind were he in the jury box.  The jury returned a verdict of not guilty.

The Attorney-General then put another information on the file, charging the prisoners with receiving the beef knowing it to have been stolen.

His Honor appeared to have great doubts whether he could legally entertain such a charge, as from the evidence of the interpreter, it appeared, there was no word in the language of the prisoners which would translate the term receiving; it was however, ultimately accomplished by telling the prisoners that they were charged with eating the flesh of cattle feloniously slaughtered by other blacks.  The above evidence was then repeated, when Mr. Purefoy, for the prisoners, submitted, that there was no case against them.  The Chief Justice considered it was a very important fact for the jury to enquire into, viz, whether the prisoners had any idea that their being possessed of stolen property was a crime, as it had come out in evidence that they thought the thief only was answerable.  He also stated, that there was no proof that any cattle had been feloniously slaughtered.

The jury retired for about ten minutes and returned a verdict of not guilty, and the prisoners were removed.

…

The seven Aborigines were then placed at the bar, and told that if they or any of their tribe were found spearing the cattle of white men, they would be taken up and hanged.  They said they would hunt for kangaroos and opposums for themselves, and if they saw any black men spearing cattle they would bring them prisoners to the white men.  They also said they would like to get back to their old ground, and were then ordered to be removed to the Benevolent Asylum until arrangements can be made for their being returned to Bang Bang on the Macquarie.

Dowling C.J., 9 November 1840

Source: Australian, 12 November 1840

MONDAY. - Before His Honor the Chief Justice.

Seven aboriginal natives of the Ban Ban tribe, in the Macquarie district, named, Dumdoman, Tommy Poker, Benjamin, Jemmy, Tommy Ban Ban, Carbon Mark, and Murra Mundong Simon were indicted for killing cattle with intent to steal their carcasses; a second count charged the prisoners with stealing. An interpreter was sworn, through whom the charge upon which they stood indicted was communicated to them, and they severally pleaded not guilty.

The court assigned counsel (Mr. Purifoy) to the prisoners, and their trial was proceeded with; but, in consequence of the very defective evidence adduced in support of the charge, the jury without hesitation acquitted the prisoners. They were then indicted for receiving the cattle, knowing them to have been stolen upon which they were also acquitted, and sent to the Benevolent Asylum to be returned to their tribe.