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Decisions of the Superior Courts of New South Wales, 1788-1899

R. v. Foley [1824] NSWSupC 12

murder - Aboriginal defendant - Port Macquarie

Supreme Court of New South Wales
Forbes C.J., 16 August 1824
Source: Sydney Gazette, 19 August 1824

Murder: - Foley, an aboriginal black native, was indicted for the wilful murder of one Charles Tinkler, a crown servant [1]< at Port Macquarie, on the 28th March last. By the evidence it appeared, that the prisoner occasionally lived in the house with the deceased and two or three other white men, and that he was in the custom of going out, with the deceased, to shoot ducks and other game; such being an indulgence extended by the Commandant to the deceased, on account of his good conduct. At the instigation of the prisoner, the deceased proceeded upon a fowling excursion, accompanied by the prisoner, two other black natives, and the father of the prisoner. This was on Tuesday. No tidings being obtained after 3 or 4 days' absence, a military party, with 3 natives, was sent out in search of the deceased; who, after some difficulty, was accidentally found in a wounded state, a spear having entered the lungs, and still remaining in the body. The poor man was immersed in water, with his head reclining on a stump. At first he seemed insensible; but immediate attention being had to his pitiable condition, he recovered sufficiently to give an account of that which had happened to him. He said, that after shooting a pair of ducks, he handed over the gun to the prisoner to make a fire by, and when in the act of drinking at a pond, one of the natives threw some mud in his face; and another struck him on the head. Upon turning round, he saw the prisoner making up a hill with his gun. He endeavoured to pursue him, when the latter told him he would be devil-devilled, or killed; and almost immediately after the prisoner's father speared him. He was soon overtaken, and so cruelly beaten by them, as to be supposed dead. In this dreadful state, the unfortunate man crawled to the spot where he was discovered, having been in that condition from the Tuesday till the Sunday following, on which day he was received into the hospital under the kind care of Dr. Moran, the Resident Surgeon. The deceased informed this Gentleman, that he should not live long; and in about an hour after medical aid was afforded, friendly death rescued our too confident fellow-creature from further suffering. The deceased exculpated the prisoner from the charge of spearing him, saying it was his father. It did not appear by any of the evidence that the prisoner's offence consisted in aught else but running off with the gun, and that the others, to cover this act, cruelly treated the deceased, as described. It was proved that the prisoner had ever conducted himself as a quiet inoffensive native, and was one of the last that could be supposed likely to perpetrate such a deed[.] Our limits will only permit us to say, that the prisoner was Acquitted. [2]



[2]For the reverse, where whites were charged with killing an Aborigine in 1824, see R. v. Johnston, Clarke, Nicholson, Castles, and Crear, 1824. On frontier violence, see the works of H. Reynolds, particularly Frontier: Aborigines, Settlers and Land, Allen and Unwin, Sydney, 1987. On the legal status of Aborigines in the nineteenth century, see B. Kercher, An Unruly Child: a History of Law in Australia, Allen and Unwin, Sydney, 1995, chap. 1; A.C. Castles, An Australian Legal History, Law Book Co., Sydney, 1982, chap. 18.

Published by the Division of Law, Macquarie University