[Aboriginal defendant – murder – Aborigines, legal status – Brisbane]

R. v. Merridio and Nengavil

Supreme Court of New South Wales

Burton J., 14 May 1841

Source: Sydney Gazette, 18 May 1841

(Before Mr. Justice Burton and a Common Jury)

            Two aboriginal natives named Merridio and Nengavil, both of Moreton Bay, were indicted for the wilful murder of William Tuck, by stabbing him in the neck with a sharp instrument at Mount Lindsay, on the 31st of May last. The first count charged Merridio as principal, and Nengavil as accessory; the second Nengavil as principal and Merridio, accessory. The third charged the murder against some person or persons unknown, the prisoners as accessories. The prisoners being called on to plead, Merridio said his name was Mullan; the indictment was accordingly altered, and the prisoners pleaded not guilty.

            Mr. Cheeke demanded, under the provision of an Act of Parliament, a Jury de medietate linguae. His Honor refused this application on the grounds that the prisoners were not aliens, as they had been naturalized by a general Act of Parliament, under which they were entitled to all the rights and privileges, as well as subject to all the liabilities of British subjects.

            The Attorney General in putting the case to the Jury, said that however distressing it might be to them, as jurors, to see persons so inferior to them in intelligence, placed at the bar to answer for their crimes, it would be more distressing, and more to be regretted, if they were not liable to the same punishment the whites were.

            The circumstances of the case were truly distressing. The indictment had been framed in different ways, as it was impossible to say who struck the blow; it would be sufficient for the case if the Jury were satisfied that the prisoners were present aiding and abetting in the commission of the murder. The prisoners were charged with having murdered William Tuck, but in detailing the circumstances connected therewith, it would be impossible to keep out of sight, the fact that another murder had been committed (by the blacks) at the same time. Mr. Stapylton, assistant surveyor, near Moreton Bay, about 70 miles from the township of Brisbane, had also been killed. On the morning of the day laid in the indictment, he sent a party to make a bridge over a creek about a mile from the encampment, himself, Tuck, and Dunlop remaining at the camp. On the return of the working party, they found Mr. Stapylton and Tuck dead, and as they supposed, Dunlop dying from wounds inflicted on him by the blacks, who had all fled, carrying with them every article of value, that they could lay their hands upon. Amongst these blacks were the prisoners at the bar. The remainder of Mr. Stapylton’s party then returned to Brisbane Town and reported these murders to the commandant, who with commendable zeal, proceeded to the scene of these outrages, and in search after the blacks succeeded in rescuing Dunlop from almost certain destruction. From the state Dunlop was in when left by his comrades, he managed to crawl into the mountains, where he remained in a most exhausted condition, until he was discovered by a constable, who heard his feeble cries for assistance, and under the treatment which he received, he recovered. The reason the prisoners were charged with the murder of Tuck was, that the body of Mr. Stapylton was so dreadfully mutilated, the head being cut off, and the flesh eaten either by the native dogs or the cannibals, so that it was almost impossible to say what caused his death, and made it difficult to identify the body. These were the circumstances of the case, which was one of great atrocity.

            In the evidence adduced on this trial, it was fully proved that the prisoners belonged to the tribe that murdered Mr. Stapylton and Tuck; that Merridio was the leader of the tribe, and from the evidence of Dunlop it was evident that the prisoners were guilty of assisting in these murders. So satisfied were the Jury of this that after a short consultation, they returned a verdict of guilty against the prisoners, on the third count, which charged them as accessories.

His Honor then passed sentence of death on the prisoners in the usual form, which when Baker, an interpreter, communicated to them, they broke out by telling him in a most indifferent way, “what of that - let them hang us.”