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

R v Broger [1830] NSWSupC 55

Aboriginal defendant, execution, murder, capital punishment

Execution, 30 August 1830

Source: Australian, 3 September 1830[1 ]

On Monday, BROGER, a black native, was hanged at Campbell Town, for the murder of a stockman, some time ago, in the interior of the country. Four other culprits suffered the day following; and the two men, McGibbon and Maas,[2 ] who were not many days ago found guilty of various forgeries on the Commissariat Department, paid the penalty of the law at Liverpool, on Wednesday.  This expenditure of human life is appalling, and doubly so, when the little amelioration produced by the frequency of capital punishments, generally on the surviving part of the depraved, and the exhibition of those spectacles in particular, is considered, ``Whose sheddeth man's blood (unrighteously) by man, shall his blood be shed."  Murder merits death by the hands of the hangman; and arson and highway robbery, when attended with aggravated outrages.  There are few other crimes, we think, the odds against the commission of which will be much augmented by the terrors of capital punishment.  The stoutest safeguards against rapine will lose their force and influence by a too common use.  What diminution of crime did the common spectacle of criminals, hanging in gibbets at the sport of the elements for years, as was once the fashion of the law, in the realm of England, ever produced?  The very crow stuck up daily, without intermission, to scare away interlopers from the corn field, soon becomes an accustomed sight to the tribe of winged free-booters.  And so is it with Jack Ketch and his noose.  Hard labor [sic] and solitary confinement have terrors in prospect for the generality of offenders, who would not unwillingly exchange the pleasure of a feat, for the chance of escaping intimate connection with ``JACK," and a "cist of his office."



[1 ] For another account of the execution, see Sydney Gazette, 31 August 1830.

The Sydney Gazette, 26 and 28 November 1829, reported that Broger was committed for trial on 23 November 1829 on a charge of murder.  The Gazette reported the trial on 26 August 1830 (the trial having been held at Campbelltown on 20 August) as follows:  "Broger, an aboriginal native, was indicted for the wilful murder of John Rivett at Shoalhaven, on the 6th of February, 1829 - Guilty, Death.  Ordered for execution on Monday the 23d instant."  His execution was then postponed for a week.

In this, as in many other murder cases, the trial was held on a Friday and the prisoner condemned to die on the following Monday.  This was consistent with the provisions of a 1752 statute (25 Geo. III c. 37, An Act for Better Preventing the Horrid Crime of Murder).  By s. 1 of that Act, all persons convicted of murder were to be executed on the next day but one after sentence was passed, unless that day were a Sunday, in which case the execution was to be held on the Monday.  By holding the trials on a Friday, judges gave the condemned prisoners an extra day to prepare themselves for death.  See R. v. Butler, July 1826.  The Act restricted the opportunity for clemency in murder cases: see Australian, 5 August 1826, pp 2-3.  By s. 4 of the Act, the judge was given power to stay the execution; for an example of that, see R. v. Fitzpatrick and Colville, June 1824.

The Archives Office of New South Wales has a file called Miscellaneous Correspondence Relating to Aborigines (5/1161), which contains a list of all Aborigines tried before the Supreme Court between May 1824 until February session 1836 (pp 271-273).  Broger or Brogan was the first on the list after Tommy, who was tried and executed in 1827 (R. v. Tommy, 1827).  Broger's alleged accomplice, another Aborigine called George Murphy, was held in custody in Argyle, but escaped.  He was later found drowned: Australian, 4 September 1829; Sydney Gazette, 28 November 1829.  See also R. v. Ballard or Barrett, 1829. 

On 17 November 1830, Governor Darling announced that Captain Logan, commandant at Moreton Bay, had been killed by natives: Sydney Gazette, 18 November 1830.

[2 ] For an account of their trial, see Sydney Gazette, 17 August 1830; and see Sydney Gazette, 4 September 1830.

Published by the Division of Law, Macquarie University