Despite these doubts about how the needs of the law should be met, it seemed as though the years of crisis that had defined the district were now passed, and that a new era of prosperity was ahead. Reporting on a policing tour of the district in March 1846, Sub-Inspector of Police Alexander Tolmer noted that the settlement was ‘advancing rapidly – Many thousand sheep have lately arrived and many more are still expected.’ He made comment on ‘how contented, and cheerful the inhabitants appeared to be compared to the alarmed state they were in’ not long previously. ‘The natives I am happy to state, are now very peaceable’; and the country to the north, he concluded, held only promise: ‘it is well adapted for sheep … the grass is abundant and in many gullies I found several springs of beautiful water’.62 Yet this state of relative peace was only secure so long as the pastoral frontier expanded no further.
Of all the frontiers of South Australia, the violence that occurred on Eyre Peninsula in the early 1840s came closest to conforming to a stereotypical European notion of warfare. The Aboriginal attacks on the settlers were co-ordinated, widespread, carried out by large bodies of fighting men, and sustained for a long period of time. Nearly every station in the district was attacked and many of them abandoned for a period of time as the settlers took refuge in the town. Individuals prominent in reprisals against the Aborigines – James Rolles Biddle, Sgt McEllister, Charles Driver, the soldiers stationed at Pillaworta, and even Clamor Schurmann and his Aboriginal guides – were specifically targeted. During this period, the Battara had a numerical advantage as well as a geographical one over the Europeans; the Europeans were confined to the narrow coastal end of the peninsula, while the inland country of the Battara enabled them to mount attacks and then retreat into the hinterland. We also have greater insight into their motives than the European historical record usually allows, especially their oft-expressed desire to drive out the Europeans. That we know these things is not necessarily because the actions and motives of the Battara were so different to those of other Aboriginal groups facing European incursions into their country, but because of Clamor Schurmann’s presence, a missionary sympathetic to their plight and familiar with their language who recorded what he was hearing.
Almost 50 years later, when the South Australian frontier was extending into central Australia, colonist John Bull wrote extensively of the violence in the Port Lincoln district during the 1840s. He saw a lesson in it. Experience in ‘every part of Australia, he wrote, proved that the safety of Europeans was secured where ‘in the first instance of occupation large and concentrated bodies of whites had settled down’. Alternatively, where the Aborigines succeeded in killing ‘a few individuals venturing to occupy lonely places’ the ‘safety of succeeding parties has not been secured until a dread has been created in the minds of the offending tribe by speedy and severe punishment inflicted on the offenders’. ‘It cannot be denied’, he concluded, ‘that there has been no safety for the lives and properties of the whites until such a dread has been established.’63 The establishment of just such a ‘culture of terror’ against Aboriginal people,64 as anthropologist Barry Morris has described it, eventually became part of the lore of the Australian frontier, but for a short time at Port Lincoln it was the Europeans who felt some of its effects.
Chapter 4
THE TRIALS OF THE CRIMINAL JUSTICE SYSTEM
As the first few years of British settlement in South Australia had demonstrated, use of punitive force was a method called upon by colonial governments to suppress Aboriginal resistance to incursions upon their lands wherever the pastoral frontier had stretched. Yet the principle that Australia was ‘settled’ rather than ‘conquered’, and that Aboriginal people were British subjects rather than nations ‘at enmity with ourselves’, was impossible to forget. This, after all, had been promoted in the recommendations of the 1837 Select Committee, and was the cornerstone of the colony’s founding proclamation. The idea that a steadfast adherence to the rule of law would provide Aboriginal people with protection continued to be voiced by South Australia’s governors, even as punitive police or military expeditions were being despatched. Ultimately, the principle that Aboriginal people were British subjects was easily declared but not so easily established, and the realities of cultural difference made extending the rights and privileges of that status much more problematic. In the coming years, as new pastoral frontiers emerged across the colony, it became repeatedly clear that although a rule of law could readily be declared which placed Aboriginal people ‘as much under the safeguard of the law as the Colonists themselves’, making this count in reality was altogether a different matter.
Throughout the 1840s, and indeed for several decades to come, the colonial authorities in South Australia struggled, just as they had in earlier Australian colonies, with a series of difficult questions about the amenability of Aboriginal people to British law. Where was the justice in making Aboriginal people amenable to laws of which they had no knowledge? How could Aboriginal people – judged to be ‘heathens’ – give evidence in Courts that required witnesses to swear an oath before God? How would the issue of language interpretation be dealt with, especially when Aboriginal interpreters themselves were judged to be incapable of taking an oath? Would the judicial system be able to overcome settler solidarity when ‘their own’ were before the courts? Finally, how could the courts deal with inter se cases, cases involving crimes committed among Aboriginal people themselves? Did the courts have the jurisdiction to deal with such cases, especially when they entailed the application of Aboriginal custom and law?
Amenability to British law
Not long before taking up his post as South Australia’s second Governor, George Grey wrote a set of suggestions on the ‘moral and social’ improvement of the Aborigines of Australia.1 It so impressed the Colonial Office that copies were despatched to all the Australian governors. Central to Grey’s argument was the proposition that Aboriginal people must be brought under the aegis of British law. This, he clearly stated, entailed the injustice of imposing upon Aboriginal people punishment for offences of which they had no knowledge; but this in his view was a necessary injustice. While the Aborigines were as ‘apt and intelligent’ as any other race he knew, Grey argued, ‘the peculiar code of laws of this people’ were such that would never see them ‘emerge from a savage state’. From the moment Aborigines were declared British subjects, Grey wrote, they should be taught that ‘British laws are to supersede their own’. There could be no room for legal pluralism – the continuation of traditional law beneath the umbrella of British law – because Aborigines could not be expected to become civilised while held ‘in thrall’ by their ‘savage and barbarous laws’. The necessary benefit of imposing British law upon them would be that it would
give them a knowledge of the leading points of our criminal code, acquaint them with our judicial forms, awaken their moral faculties, and form another link in that chain by which they may eventually be led on to Christianity and civilization.2
Others within the judiciary were less idealistic about assuming that Aboriginal people could be so readily regarded in law as British subjects. In particular the colony’s Chief Judge, Charles Cooper, struggled with deep reservations. Judge Cooper’s judicial career in the colony had begun with a baptism of fire when he was asked to provide Governor Gawler with advice on how to respond to the murder of the twenty-six survivors of the Maria shipwreck on the Coorong in 1840. Cooper’s advice – that the court had no jurisdiction over Aboriginal tribes which had had no contact with Europeans – justified Gawler’s decision to invoke martial law against the Milmenrura. Cooper expanded on his legal opinion in an address to the grand jury at the last Criminal Sessions of 1840. His advice on the Maria case was
founded on the opinion that such only of the native population as have in some degree acquiesced in our dominion can be considered subject to our laws, and that, with regard to all others, we must be considered as much strangers as Governor Hindmarsh and the first
settlers were to the whole native population, when they raised the British standard on their landing at Glenelg.3
As early as 1839 Cooper had found two Aboriginal men guilty of the murder of Europeans and sentenced them to hang, but the distinction in those cases was that by their association with the settlers they had brought themselves under the jurisdiction of British law. With this argument he established a principle that was to guide the treatment of Aboriginal people before the courts for the next decade. In the 1842 trial of Kertameru for stealing and killing a calf, Defence Counsel Charles Mann maintained that ‘the uncultivated state of his client’ made it ‘difficult to determine upon felonious assault’, but the judge insisted that Kertameru’s prior association with Europeans was evidence that he had some understanding of European ways and was therefore liable to British justice.4
The distinction in law between those Aborigines who had no previous contact with Europeans and those who did determined the outcome of the trial in 1845 of Wira Maldira and Wekweki for the murder of a shepherd, McGrath, on the Coorong. According to the evidence of Protector Moorhouse, Wira Maldira, otherwise known as Peter,
was the chief instigator in the affair: he had lived for nearly two years with Europeans, and knew our habits and some of our laws, and, in consequence, was more culpable than Wekweki and others who were with him, as no stations had ever been formed in his territory at the time.5
Both men were found guilty of the charge and sentenced to death, but the Governor commuted the sentence in the case of Wekweki, presumably on the grounds that his ‘uncivilised’ nature made him less culpable.6
The problem of trying Aboriginal people deemed to be entirely ignorant of British law, and often for whom no one was capable of interpreting in court, continued to trouble Cooper. One of his strategies was to adopt a variation of the maxim ‘justice delayed is justice denied’; for Cooper, ‘justice delayed’ was sometimes ‘injustice avoided’. In May 1846 three Aboriginal men came before the Supreme Court charged with murdering a shepherd at Mount Arden in the mid-north. At their arraignment it was revealed that ‘they belonged to a tribe who had previously had no intercourse with Europeans, who were presumed to be altogether ignorant of our Law and Customs, and whose language was in no degree known by Europeans’.7 The judge remanded them for three months in the hope that their language could be learned, or that they might be sufficiently instructed to stand trial. Even then, he held strong doubts ‘of their being fit subjects for the jurisdiction of the Court’, and questioned ‘whether they should be put on their trial at all for an offence arising out of their collision with the first Europeans ever entering their territory’.8 Cooper expanded on these difficulties in a letter to the Governor in March 1847. He discussed the difficulties of trying offences involving Aborigines who had no contact with Europeans ‘until the moment of the commission of their alleged offence’.9 Under such circumstances, Cooper considered it improper to try people according to British law because they could not be ‘deemed cognizant of our assumed dominion over their country or themselves’.10
Cooper’s doubts went to the heart of one of the implicit ideals of the rule of law: that citizens subject to it have an investment in it. As legal scholar Martin Krygier has put it, for the rule of law to function meaningfully it has to be ‘knowable and generally known’; citizens need to ‘appreciate its authority’ and its ‘relevance to their encounters,’ and be ‘prepared to invoke it’.11 In Cooper’s view, Aboriginal people would only become truly amenable to British law through education of it, ideally through the agency and advocacy of the Protector of Aborigines.12 The Protector Matthew Moorhouse did in fact endeavour to do this over the coming years. On occasions when he was required to visit remote districts to investigate disturbances or crimes, he would organise a distribution of rations and speak through an interpreter to the Aboriginal people who assembled about the nature of British law, which, he told them, was committed to protecting their lives as well as the lives and property of Europeans. The task of educating Aboriginal people in the law was also expected of the Sub-Protectors who were appointed to remote posts over the 1840s and 1850s.13 It is another question entirely as to how meaningful such law lectures on the frontier might have been.
The problem of Aboriginal evidence
Alongside the problem of Aboriginal defendants understanding, let alone accepting, the terms of British law was the problem of the inadmissibility of Aboriginal evidence. In 1843, writing from Moorundie on the River Murray where he had been appointed Sub-Protector of Aborigines and Resident Magistrate, Edward Eyre outlined the ‘legal disabilities’ Aboriginal people were exposed to as British subjects:
In declaring the natives British subjects, and making them amenable to British Laws, they have been placed in the anomalous position of being made amenable to laws of which they are quite ignorant, and which at the same time do not afford them the slightest redress from any injuries they may sustain at the hands of Europeans.14
The root of the dilemma in Eyre’s view was the fact that Aboriginal people could not give evidence in a court of law. The consequence, he argued, was that Aboriginal people were regularly punished for offences from which Europeans always escaped. Despite his reservations, Eyre argued not against the essential principle that Aboriginal people should be ‘made’ British subjects, but rather that the law should be amended to allow Aboriginal evidence to be more readily accepted. This was an issue that both the imperial parliament and colonial legislatures were endeavouring to address. At a meeting of the Executive Council on 30 September 1840, in the midst of the Maria controversy, Governor Gawler tabled a bill to allow Aboriginal testimony to be received in a court of law. Yet perhaps caught in the cross-fire between conscience and duty, Gawler damned his bill with faint praise. In his closing remarks, he observed:
being in its object of admitting the evidence of persons unconscious of the obligation of an oath or solemn declaration, a very great departure from constitutional principles, I apprehend it may be necessary to suspend its operation until it shall have received the royal sanction.15
The inadmissibility of Aboriginal evidence in courts of law had long been recognised across Australia’s colonies as a profound problem in treating Aboriginal peoples equitably before the law. As the Aborigines Protection Society in Britain had complained in 1839, the inadmissibility of their evidence rendered Aboriginal people not only disadvantaged by the law, but ‘virtually outlaws in their Native Land’.16 Despite this recognition, proposed acts for the admission of Aboriginal evidence were rejected in New South Wales (which included the later territories of Victoria and Queensland within its jurisdiction) in 1839, 1844 and 1849.17 In Queensland, Aboriginal people were unable to take the oath and therefore give a statement in court before 1876.18 In this regard South and Western Australia appeared more liberal: in both colonies, acts were passed in the early 1840s to allow Aboriginal evidence to be accepted without the sanction of an oath.
South Australia’s Aborigines Evidence Act was passed in 1844, although it would take another two years for it to receive formal assent from London.19 Further questions relating to Aboriginal evidence arose around the court’s ability to accept unsworn Aboriginal interpreters,20 leading to the Aborigines Witnesses Act of 1848 which allowed an ‘uncivilised’ person to act as an interpreter without having to take the oath.21 However, although the courts could now receive Aboriginal evidence, the effectiveness of the Act was limited by two provisos: that the court retained discretion to determine what ‘degree of weight and credibility’ could be attached to Aboriginal evidence, and that no conviction could be made on ‘the sole testimony of any such uncivilized persons’, but would require the corroboration of European evidence.22
Despite these efforts to accommodate Aboriginal witnesses and interpreters within the judicial system, a more difficult problem to overcome – one arising from the very nature of the frontier – was that few people could be found to act as competent interpreters for the court. Giv
en that the most troubled phase of first contact in many districts passed within a short matter of years, there was little opportunity to develop a capacity for available translators of Aboriginal testimony. In the very phase where the humanitarian ideal that British justice could protect Aboriginal people mattered most, the judicial system was at its most impotent.
Judges of the colonial court were painfully aware of this dilemma. During the 1840s Judge Cooper, consistently faced with an absence of competent interpreters, would hold prisoners on remand for months on end until interpreters could be found or trained. A corollary of this was that Aboriginal witnesses were held in custody for inordinate periods of time. In the end, it was often easier for the judge to abandon the case. On other occasions when attempts were made to hold trials using poorly prepared interpreters, the proceedings were reduced to farce. In 1846, for instance, when Kudnutya came before the Supreme Court on a charge of murder, ‘Charley’, a member of a neighbouring tribe, translated his testimony while the Protector of Aborigines Matthew Moorhouse translated Charley’s testimony into English; as a consequence it was often ‘ten minutes before a single answer could be obtained’. Even when an Aboriginal person who knew the requisite language was entrusted with the task of interpretation, the Aborigines Evidence Act, which regarded Aboriginal evidence as insufficient unless corroborated by European evidence, meant that the veracity of the interpretation might be considered questionable.23 In 1847, when an Aboriginal man interpreted in court, the Advocate General advised that ‘there being no means of testing the accuracy of his communications it would be unsafe to admit his interpretations’.24
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