[rape - Aboriginal defendant - Aboriginal interpreter]

R. v. Mow-watty and Bioorah
Court of Criminal Jurisdiction
Garling A.J.A., 27 September 1816
Source: Sydney Gazette, 28 September 1816[1]

Daniel Mow-watty and Bioorah, two native men, were brought to the bar, and stood charged, the first with having committed a rape on the person of a girl 15 years of age, the daughter of a settler in the vicinity of Parramatta; and the latter with being present and accessory to the offence. Before the arraignment of the prisoners took place, however, the Judge Advocate observed with respect to Bioorah, who understands English tolerably well, that as there did not appear in the depositions upon which he had been committed to trial sufficient cause, under the peculiar circumstances in which he stood, before proceeding to try him, he should direct his being discharged accordingly.
The prisoner Daniel was then arraigned, and a competent person appointed by the Court to assist him in his defence. A number of natives who were in attendance were directed to be admitted near the prisoner, and among these were Bidgy Bidgy and several others who speak and understand English, and can converse upon all ordinary topics.
The trial commenced with the testimony of the prosecutrix, who narrated in the story of her misfortune with much evident distress of mind. She had left Parramatta on the 6th of August last, at about 12 at noon, on her return home, which was at a distance of five or six miles. She passed the gate of Mr McArthur's stock farm in company with two women whom she knew that they shortly after separated from her, and took another road, which led to their own farms. She walked on by herself, and when she had advanced about a quarter of a mile farther, a black man, whom she positively affirmed to be the prisoner at the bar, came out of the bush and asked her where she was going? She answered that she was going home; and to this the prisoner returned - "No, you are not." He then seized her rudely by the neck, and dragged her into the wood, where he beat her head against a tree, and beat and bruised her all over. He then accomplished the crime for which he was indicted; and she, recollecting that she had some bills and copper coin with her, which she had received in Parramatta for her father, told the prisoner she had some money, which she would give to him to let her go. To this he consented, then she gave him two bills, one of 10s. the other for 2s. 6d. He then demanded the copper coin, and on receipt of it permitted her to go from him; she made as much haste as possible to regain the public road, but was pursued and antagonised by the prisoner, who renewed his cruel treatment, and beat her violently against the stump of a tree. The native Bioorah (who had been discharged from the bar of the Court), was a near spectator of the whole transaction and several times cried out "kill her; kill her;" but did not otherwise interfere. While the prisoner was again beating her she supposed he must have perceived Mr McArthur's stockman, as he suddenly left her and ran off, and she immediately after saw the stockman at about 30 yards distance; she ran towards him, but fell through weakness and affright, after proceeding a few paces; the stockman had raised her up, and she enquired of him where she was; he conducted her to a hut at a short distance, where she drank a little water, and remained until she was sufficiently recovered to pursue her journey, under the protection of a man whom he sent home with her. She had used every effort to resist the ill treatment she received, and cried for help as well as she was able, but all was unavailing; the prisoner, was naked, as the bush natives generally are; she had observed several marks in his forearm, and was convinced the prisoner at the bar was the same man. She had never before seen him, but had described him before he was apprehended, and recognized him as soon as she afterwards saw him. On her arrival at her father's house, she told her parents she had met with a severe misfortune, and withdrew with her mother to whom she communicated the whole of her calamity, and the day following she went into Parramatta, accompanied by her mother, and gave information to a magistrate of the transaction. The prisoner was not then in custody, but was apprehended the day following, and she immediately knew him to be the person, but he denied the accusation. When he attacked her he looked around as the fearful of being surprised and appeared much frightened and agitated while he was treating her in the manner described.
John Shee, stockman to Mr McArthur, gave evidence in corroboration of that of the prosecutrix; stating also that when he went to her as she fell in running towards him, he found her speechless on the ground. He had previously heard a noise like the cries of distress, but they were inarticulate, and did not at first seem to proceed from a human voice. When she was a little recovered she asked where she was, and was by him taken to a hut near the place from whence he sent a man to conduct her home to her parents. She appeared to have been nearly choked: the neck was very black, and she had every appearance of being very ill used. Witness had known the prisoner at the bar about 12 months; at the beginning of August he worked as a labourer for a Mr. Bellamy, a settler at Pennant Hills; he considered the prisoner to be in the common habits of life of labouring persons; he worked as other labourers, and lived in the same way: he also knew that the prisoner was at work at Bellamy's farm, which is a few miles distant from Parramatta, on the 5th of August, and that he was not there upon the 6th.
The mother of the prosecutrix gave evidence of her daughter returning from Parramatta on the afternoon of the 6th of August, and corroborated her testimony as far as regards to what passed subsequent to that period.
James Oldgate, Constable of Parramatta, accompanied the prisoner at the bar, a few days after he was apprehended for this offence, to the farm of Mr Bellamy, for the purpose of recovering some money which he, the prisoner, had acknowledged taking from the prosecutrix, in which he said he had concealed at Bellamy's. On their arrival there the prisoner stopped at a spot of earth which he had noticed, and said, "it is all right; what I took from her it here;" on saying which removed a clod and took from beneath it a ten shilling note and a few copper pieces, all which were produced in Court. Witness had known the prisoner at the bar 12 or 13 years; he was brought up in the families of Europeans, and had informed him that he could not live in the bush now, from his being habituated to the white people's mode of living. He had been for a length of time in the service of Mr. Kerry, a botanist, he went to England in the Porpoise, and took the prisoner with him thither; from whence he returned to this Colony in 1811; he had known the prisoner since his return, he worked with any other labourer, received wages, and lived as labourers generally do.
The Court wishing clearly to ascertain the prisoner's clear and conscious discrimination between good and evil, in the examination of the several witnesses were particularly attentive to this point. This witness being interrogated as to his opinion of his intellects, said that he had always considered him shrewd and sensible; as he had worked as other men, were the stockman to Bellamy when the crime before the Court was perpetrated, had been reared from his infancy among the European inhabitants of the Colony, and he could have no doubt was well aware of the difference between a good and an evil act.
G. Blaxland Esquire deposed to his knowledge of the prisoner; whom he considered to be an intelligent man, and one of the best acquainted with the English language that he had ever met with; that he had a clear conception between a good and an evil acts he could not possibly doubt; neither could he doubt that from his constant habits he must be aware of any act that would give offence to our laws and usages; and upon those occasions where it had been found necessary to proscribe certain natives for their atrocities against the settlers, he had always shielded himself under the protection of the law by adhering to the habits in which he had been reared; he knew that crimes were punished by the law, and could not if he committed a crime be ignorant that he was doing wrong.
The Rev. Mr. Marsden spoke also to his knowledge of the prisoner, which had consisted for nearly 20 years. He was reared in Parramatta from his infancy, first in the family of Richard Partridge, and afterwards with Mr. Caley, botanist, who took him to England with him; where he resided about a twelvemonth, and then returned to this Colony. He had met him since his return naked in the woods, and a considerable distance from the settlement; knows that he was in the service of Mr Bellamy; had no doubt of his acquaintance; from long experience, with our manners and customs, and had a discrimination between right and wrong; he had admitted the act for which he was then on trial to the wrong, and appeared to possess as strong an intellect as persons in general possess who have not the advantage of education.
Robert Lowe Esquire also deposed to his knowledge of the prisoner, who came in the same ship with him from England in 1811. He considered him a sensible man; very intelligent, and is much pleased with the manners and customs of Europeans, that he had frequently during the passage avowed a determination to conform to them entirely after his arrival.
The examination here concluded; and the prisoner rested his defence on a palpable denial of any knowledge of the transaction. From the clear proof that had been established to the contrary, however, the Court was of a different opinion, and returned a verdict Guilty.

Note

[1] According to surviving records, Mow-watty was the first Aborigine in the colony to be convicted of a crime and executed. He was also the first Aborigine to be tried by a superior court in New South Wales . As such, his trial constitutes a landmark: the beginning of a new era of legal process that both eroded and recognised indigenous legal independence in the first decades of colonisation. This trial record should be read in the context of Mow-watty's assimilation into European society. His position was unusual due to his cultural, moral, physical and legal affinities with the colonial community.

We are not certain that Garling was the Judge Advocate in this case: he was the Acting Judge Advocate between the death of Ellis Bent and the arrival of John Wylde.

Mow-watty was executed on 1 November 1816 (see Macquarie, Diary, 295).

See L. Ford and B. Salter, “From Pluralism to Territorial Sovereignty: The 1816 Trial of Mow-watty in the Superior Court of New South Wales” (2008) 7 Indigenous Law Journal (forthcoming); Keith Vincent Smith, ‘Moowattin, Daniel (c.1791-1816)' Australian Dictionary of Biography, Supplementary Volume (2005), 286-287 (noting that Smith identifies Mow-watty's name as Daniel Moowattin); Lachlan Macquarie, Diary, 1 November 1816, Mitchell Library, A773, 295.