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

R. v. Tommy [1844]

stealing - Aboriginal defendant - Aboriginal land rights - Aboriginal law, recognition of - Aborigines, legal status - Aboriginal evidence - Aboriginal interpreter

Supreme Court of New South Wales, Port Phillip

Jeffcott J, 15 July 1844

Source: Port Phillip Gazette, 17 July 1844[1] 

The following jury were then empannelled: Jacob Marks, W. H. Mortimer, Bernard M'Ivor, James Mayne, W. Locke, Henry Miller, R. Langlands, A. McCrae (foreman.) J. Landals, A. Langhorne, James M'Manus, and Charles Lang.


William Tommy, an Aborigine, was placed at the bar, indicted for having on the [10th?] May stolen one parcel of taps, value ten shillings, and one parcel of nails, value two shillings, from the premises of Messrs. Stanway, wine merchants, Queen-street. The prisoner when called on to plead to the information, answered in a clear voice "not guilty."

The Crown Prosecutor explained that Mr. Protector Thomas was in attendance to act as interpreter on behalf of the prisoner, who was an Aborigine of more than ordinary intelligence as proved by his short defence of "not guilty." (The evidence given in the committal of the prisoner at the police-office, was re-produced and sworn to.)

Mr. Barry, counsel for the Aborigines, urged in defence of the prisoner, his ignorance of the laws of property, and cited Blackstone and the Old Testament to prove the original community of property. The Aborigines of this country like those of others, asserted their rights to the streams by which they lay, to the ground on which they lay, and the game which they killed, but they asserted their rights to the property only while in actual possession or occupation of them, and supposing them to depart therefrom this property reverted to the next who found it. It could be therefore easily imagined that seeing the property deserted by the owner, the prisoner had considered it to be abandoned, and all right to it by the original holder relinquished, on which he thought he might claim it. There were such things as waits and treasure trovers, and it had been conceded by learned authorities that proving the possession they might be held against the whole world, but fortunately he (Mr. Barry) was not driven to that species of defence. The prisoner was entitled to all the immunities and privileges of the other subjects of the Crown, which recognised no distinction in law. The prisoner had been arraigned but upon what evidence? It was necessary that the Crown should have proved the property to belong to some individual, whereas the taps had been repudiated by all. Again it had not been proved that the goods were actually taken by the prisoner, and in considering these points the jury should also weigh the moral guilt of the prisoner, that is, if he feloniously took these goods, (if taken at all.)

His Honor in laying the case before the jury said, there was no direct proof that the prisoner had taken the articles, he held them in his hand, evidently without affecting to conceal them. He was not afraid when he was first questioned as to how he came by the property, but on seeing the constable he endeavoured to hide himself. These were doubts, and the benefit of them should be given to the prisoner. It was not necessary that they should go back as far as Mr. Barry wished to lead them, nor need they trouble themselves to refer to the first chapter in Genesis, or the beginning of the world. There were later laws by which their verdict should be guided. The jury returned a verdict of acquittal.

His Honor desired Mr. Thomas to impress on the mind of the prisoner the nature of his offence, his trial, and the reasons of his acquittal.


[1]  This case is remarkable for the defence argument, although this was not the first jury to acquit an Aboriginal defendant. See for example, R v Hatherly and Jackie [1822] NSWKR 10; [1822] NSWSupC 10.

Published by the Division of Law, Macquarie University