[Aboriginal defendant – confession, admissibility – Aboriginal evidence]

R. v. Hatherly and Jackie

Court of Criminal Jurisdiction

Wylde J.A., 18 and 27 December 1822, 1 January 1823

Source: Sydney Gazette, 2 January 1823[1]

Hatherly and Jackie, two Aboriginal natives, were next indicted for the wilful murder, on the 10th October last, at Newcastle, of John M'Donald. It appeared that the deceased had been left in charge of the government tobacco plantation at Nelson's Plain about 22 miles from the settlement of Newcastle . He was missed for the space of a fortnight, and the hut which he had occupied was plundered of its little all. With the aid of another aboriginal native called George who is attached to the interests of Europeans, the body of the deceased was found lying in a lagoon, in a horribly mangled condition. It exhibited such marks of native atrocity as were frequent in former times. Suspicion fell upon these two natives, the prisoners, as they were left with the deceased in the hut when last seen, and they had become latterly invisible about their usual haunts. A plan being laid, they were entrapped, and acknowledged that they had perpetrated the deed, but each charging the other with the most atrocious part. Before the commandant they confessed the crime, and even in court while the members had retired to consider of their disposal, they acknowledged the foul transaction. The court, however, under all the peculiar circumstances of the case as there existed no other proof against the prisoners than their own declaration, which could not legally, in this instance, be construed into a confession, returned a verdict of not guilty.

Note

[1] Our thanks to Lisa Ford for pointing out the existence of this case to us.

A question here is whether the confessions were inadmissible because non-Christian Aborigines were unable to give evidence, or because of the general laws concerning confession.Hatherly and Jackie were not intimates of the settlers. Unlike the Aboriginal man George, Hatherly and Jackie are not described as farm workers. Yet they were intimate enough to be left in the company of a lone settler and to be given British names. An important question here is why the confessions were inadmissible: was it because non-Christian Aborigines were unable to give evidence and so unable to confess, or was it because of a concern about their lack of understanding of legal processes?

On this case, see also Court of Criminal Jurisdiction, Informations, Depositions and Related Papers, 1816-1824, State Records N.S.W., SZ800, p. 1 (no. 1).