Out of the Silence

by Robert Foster

  When two Europeans, Henry Jones and Thomas Morris, were tried for the murder of an Aboriginal man, Melaityappa, in September 1849 it may have seemed that the fate of the Europeans accused was cast. Melaityappa had been shot three times, and before he died of his wounds, he had given a full statement to the Protector of Aborigines identifying the accused. His companion, Perria, was a material witness, and corroborated his account. Most directly, the bullet Moorhouse had removed from Melaityappa’s chest before he died matched Jones’ gun. The presiding judge Charles Mann told the jury that the ‘circumstances so strongly corroborate the testimony of the native witnesses that your duty, is, it seems to me, clear’.25 Before the trial, he had interviewed Perria and his Aboriginal interpreter, and found their responses clear and persuasive. Yet as the case progressed, he viewed the evidence of Perria with growing dismay. Bewildered by the proceedings, Perria had pointed to the wrong man when asked to identify the accused. The interpreter’s responses were not clear to the court. As historian Skye Krichauff has shown, an attempt to save the case by putting Melaityappa’s dying testimony into evidence was rejected by the judge on the basis of a strangely clumsy concession to cultural difference:

  Judge Mann would not admit it as Moorhouse had earlier said ‘the natives do not admit they are in danger of death’. According to Mann ‘it is only the consciousness of approaching dissolution and a belief in future rewards and punishments, that give solemnity and force to a dying declaration’.26

  Reluctantly, Judge Mann directed that the only safe course was for the jury to acquit the prisoners, which they did ‘without hesitation’. After the trial, Judge Mann took the unusual step of writing to the Governor with his concerns about the language problems that had scuttled the trial. He ‘could not help feeling that [the] effect was prejudicial; that it tended to lower the opinion of the judge in the estimation of the Public and to induce a conviction that neither a native Interpreter or Witness could be depended on’. He offered the opinion that the present system was not ‘requisite for the ends of justice’, and nor would it be until Aboriginal languages could be sufficiently acquired by trained interpreters.27

  On the other hand, if Aboriginal testimony was necessary to secure the conviction of Aboriginal people for offences against Europeans, the perceived reliability of their evidence magically improved. Protector Moorhouse drew attention to this double-standard in a letter to the Chief Secretary shortly after Jones and Morris’ trial. At around the same time as Jones and Morris went on trial for the murder of Melaityappa, two cases against Aboriginal men for the murder of Europeans on Eyre Peninsula came before the courts: one against Malgalta and Mingulta for the murder of shepherd John Hamp, the other against Ninalta and Kulgalta for the murder of pastoralist James Beevor. In both cases, the Aboriginal men were found guilty on the basis of Aboriginal evidence. The Protector of Aborigines was concerned that if the defendants had been Europeans, ‘the juries would not from the evidence produced have brought them in guilty’. In the first place, he argued, ‘the chief evidence against them was given by natives, a kind of evidence that a few days before had been rejected as dangerous and unsatisfactory when given against Europeans’. In the second place, the efforts of the police corporal during one of the trials to address the witnesses in their own language and to translate their answers were ‘unintelligible’ and altogether unsatisfactory. Moorhouse complained of the ‘prejudicial feeling existing in the minds of the juries’, and concluded that if ‘mercy and forbearance be not entertained’ for these Aboriginal defendants, ‘I must say that I shall have much difficulty in believing the declaration that the Natives enjoy the protection of British Law’.28 Moorhouse’s entreaties were ignored and all four men were hanged at the site of their alleged murders.

  Europeans on trial

  If it was difficult for courts to accommodate Aboriginal people either as competent witnesses or defendants, how did Europeans experience the justice system when charged with the injury or death of Aboriginal people? In clarifying that Aboriginal people were to be regarded as British subjects and would enjoy the protection of the law, Governor Hindmarsh’s Proclamation of 1836 had emphatically stated that ‘all acts of violence or injustice’ attempted against them would be punished ‘with exemplary severity’. Chief Judge Sir John Jeffcott made the same assertion at the first sitting of the Supreme Court. Alan Pope has shown that in the period of most intense frontier conflict in South Australia, from foundation to the early 1860s, 66 Aboriginal people were tried for the murder of settlers, and 22 executed.29 Over the same period, only 7 Europeans in 5 separate cases were tried for the murder or manslaughter of Aboriginal people, and of these most were acquitted. Perhaps surprisingly, despite the foundational principle that Aboriginal people would receive the full protection of the law, the numerical discrepancy between Aboriginals and Europeans executed for murder in South Australia’s first decades was considerably greater than was the case in other colonies over that period.30 Although this discrepancy of numbers may not be surprising in hindsight, what does it tell us about the obstacles faced by the legal system in providing equal protection to Aboriginal people, if not ‘exemplary’ shows of justice? In fact, the small number of Europeans tried for the murder of Aboriginal people does not reflect the larger number of cases that were investigated. All suspicious deaths required an investigation; this was a form of legal surveillance, it was hoped, that would ensure the protection of Aboriginal people as British subjects. Yet as Barry Patton notes, the impact of such legal requirements could only be tested against ‘the success of prosecution and sentencing as a deterrent to future frontier violence’.31 The failure of the law to bring Europeans to trial for Aboriginal murder, let alone to secure convictions against them, must be seen in the context of a wider set of difficulties that obstructed the implementation of the rule of law at each stage, from the discovery of the offence and the collection of evidence through to judgment in the Supreme Court.

  In theory, there was a clear line of legal process in the investigation of offences, even those that occurred a long way from the settled districts. Local Magistrates and Justices of the Peace were appointed from amongst ‘respectable’ settlers to be the law’s representatives in remote locations where a permanent police presence and local courts did not yet exist.32 Where a magistrate was not available, the agreement of two or more Justices of the Peace carried the same authority.33 These functionaries constituted the first point of inquiry into suspected offences, and filtered the cases that would come before the court. They gathered evidence for further police investigations by taking witness depositions, they issued warrants for the apprehension of suspects, and they could requisition police constables to ‘act under the Magistrate’s immediate orders’.34 In the event of a suspicious death, they would conduct a coronial inquest, to be attended by a medical practitioner (if need be), a constable and a specially summonsed jury also comprised of settlers deemed worthy of that responsibility.35 If appropriate, the accrued evidence would lead to a committal and thence, if necessary, to court. But although this line of legal process was quite clear, it almost never led to the prosecution of cases involving settler offences against Aboriginal people.

  What were the forces that would explain this gap between the principle of legal process and its practice? In cases of frontier collisions entailing Aboriginal deaths, the ideal of the rule of law most frequently broke down at the very first stage of evidence-gathering. ‘Insufficiency of evidence’ was a repeated phrase in official reports that encapsulated a whole raft of difficulties in securing criminal charges against Europeans. Underlying these, not surprisingly, was the tyranny of distance: the remoteness of places where ‘affrays’ took place, the time lag in investigating reported deaths, and the insufficiency of police resources. Most importantly, perhaps, obstacles to legal investigation were posed by the culture of the frontier itself. A secret culture of violence on remote frontiers of settlement was frequently suspected – even assumed – by authorit
ies, but often proved almost impossible to investigate. In 1846, regretting the insufficiency of police resources to actually prevent frontier collisions, the Police Commissioner noted with resignation that Aboriginal people would ‘pay by the loss of life’ wherever ‘the settlers are left to be their own judges and redressors’.36

  The distance between new pastoral districts and the seat of government supported a frontier culture that seemed almost to ensure an ‘insufficiency of evidence’ for cases to proceed against Europeans suspected of crimes against Aboriginal people. Investigations were abandoned because evidence-gathering was obstructed by settlers unwilling to impeach members of their own community, or because suspects disappeared before an investigation could be completed. In 1846, for instance, when David Morgan was investigated for the murder of Pannenum, the Advocate General considered the evidence ‘pregnant with suspicion’, but the absence of willing witnesses rendered it inadequate to ‘fix the charge on the accused’.37 On the Eyre Peninsula in 1849 and again in 1851, separate investigations against shepherds Patrick Dwyer and Hugh Fuller, in which several Aboriginal people died after eating arsenic-laced flour, were dropped because the suspects left the colony on the first available vessels.38 Local Justice of the Peace Henry Price noted the ‘dangerous’ feeling of settlers in that district who, ‘scattered thinly over a wide extent of country, [had] ready means at command for working their will, almost without a chance of detection’.39

  If the problems of distance and the solidarity of settlers created one set of obstacles in bringing charges against Europeans even to the committal stage, the potential unreliability of the officials entrusted to facilitate investigations created another. While we now conceive of the legal system as a monolith of formal rules and procedures presided over by well-trained functionaries, this was not so in the nineteenth century. The few Magistrates and Justices of the Peace tasked with prosecuting investigations in remote areas usually had no legal training and often acted in an honorary capacity. They were also usually landholders, potentially subject to the same culture of solidarity that influenced other settlers. These functionaries were more than once reproached by the Advocate General for failing to properly investigate suspected offences against Aboriginal people. In 1843, a shepherd named Shelton admitted shooting dead an Aboriginal man he had caught in the act of stealing a sheep from the fold during the night. Local JP George Hawker, who owned the neighbouring station, duly took the shepherd’s deposition, but considered no criminal charge against him was warranted, since it was a shepherd’s ‘duty to defend the sheep’.40

  The Advocate General was not satisfied with Hawker’s efforts. On the basis of the evidence, ‘the Homicide is clearly proved’, and in ‘such cases no magistrate is entitled to discharge on his own impressions of the guilt or innocence of the party, whereby the gravest crimes might escape judicial inquiry’. He required that an investigation proceed, adding that ‘Magistrates ought to take the examinations of, and bind by recognizance, all persons who know the facts and circumstances which are to be forwarded to the proper officer’.41 In the event, Shelton was committed for trial, but when the principal witness disappeared in the bush, the case stalled and Shelton was ‘set at large’.42 This shooting occurred on the station of pastoralist J.B. Hughes, who considered himself the primary victim of this incident: he complained to the authorities about the inadequacy of police protection against Aboriginal attacks on his stock, in the absence of which ‘in simple self defence we shall be compelled to shoot more of them’.43 Within the next decade Hughes would himself be appointed as a magistrate.44

  While colonial authorities did sometimes make sincere efforts to bring violent acts against Aboriginal people out of obscurity into the light, it did not follow that they were willing or even able to prosecute those acts with ‘exemplary severity’, because the limits imposed on settlers of ‘self defence’ and ‘justifiable homicide’ were never clearly defined.45 Writing to Governor Grey in 1842, Secretary of State Lord Stanley himself noted that although it was necessary to ‘visit with severity’ those settlers who ‘overstep the legitimate bounds of self-defence’, it was actually ‘very difficult to define what are those legitimate bounds’. 46 At stake, in Stanley’s mind, was the problem that if settlers were routinely prosecuted for injury to Aboriginal people in the course of protecting their stock, they would lose faith in the law. At the other end of the scale, if Aboriginal people who committed the crime of stealing settlers’ property were not seen to be adequately punished by the law, it would ‘lead the settlers to take the law into their own hands’.47 Stanley’s words exactly articulated an implicit inversion of the principle of Aboriginal protection through legal process: on the one hand, the inherent ambiguity of the line between legitimate acts of self defence and illegitimate acts of retaliation gave protection to settlers who caused Aboriginal death in the recovery of stolen stock; on the other hand, Aboriginal protection from illegitimate acts of retaliation was seen to be best served by the vigorous prosecution of their ‘crime’ in the eyes of settlers.

  Self defence appeared so often as a justification for acts of violence against Aboriginal people that it became a cliché which could stretch to just about any event. In 1843, after hutkeeper Gregory shot dead an Aboriginal woman who had ‘struck’ him while resisting his attempt to bring her in to the station for questioning about scattered sheep, he was tried for manslaughter and acquitted on grounds of self defence.48 The justification of self defence could be extended to defence of property. When shepherd Joseph Rilka shot dead ‘one or two natives’ in an affray while recovering stolen sheep in 1847, no criminal charge was considered warranted.49 During the previous month, a police constable had visited the area after hearing that ‘the natives proposed to attack the sheep,’ and had ‘cautioned them of the criminality’ of such an attempt. Notwithstanding the constable’s warning, they had subsequently driven off about 400 sheep, leading to the affray. The Commissioner had himself examined the case because ‘there was no magistrate in the District’, and found that ‘no criminal charge could be sustained against any individual concerned in the death of these natives’ because ‘they had been previously warned of the consequences … The owners had a right to recover their property, by force if necessary, and they had a right to resist the offenders in the act of committing a felony’. Under these circumstances, he concluded, ‘I presume the verdict of a Jury would be justifiable Homicide’.50 The Advocate General concurred.51 Similarly in 1852 when two station workers killed ‘several’ Aborigines in a clash while recovering stolen stock, it was concluded, despite the Protector’s sense that there were ‘flaws’ in the men’s testimony, that no crime had been committed because the men had fired on those refusing to give up stolen property.52

  Self defence and justifiable homicide were reasonings that not only protected settlers’ investment in their stock, but also protected police when supporting settlers to retrieve property. In August 1847, Corporal Robins reported shooting dead an Aboriginal man in the ‘last extremity’ while helping Mr Baker to recover stolen sheep on his station in the south east.53 Interestingly, the Commissioner of Police found ‘the conduct of Corpl Robins to be perfectly justifiable, he having legal authority’; and although any Aboriginal death must be ‘deplored’, ‘it becomes a question whether under the peculiar circumstances … the aggregate amount of injury done to the natives is not less when inflicted under some form of Law, than when left to the settlers themselves, who are known from experience to lose no opportunity … to take the law into their own hands, knowing the difficulty which exists in producing evidence against them in cases of this kind’.54 The Police Commissioner’s comments are revealing of just how compromised the workings of the law could be, when the principle of Aboriginal protection could be reduced to an ‘amount of injury… inflicted under some form of Law,’ in comparison to a form of settler revenge in which evidence would always be elusive. With its implied hope that ‘injury to the natives’ inflicted by police
would help to deter settlers from taking the ‘law into their own hands’, the Commissioner’s observation was also a candid acknowledgement that settlers routinely lost ‘no opportunity’ to do so, and usually got away with it.

  Although the law required a coronial inquiry into all cases of violent or unexplained death, very few formal inquests were held into Aboriginal deaths in frontier districts. In part, as Mark Finnane and Jonathan Richards’ work on inquests in colonial Queensland illustrates, this could be because their legal requirement was ‘mediated by the realities of distance, denial, cover-up and subversion of justice’.55 There were also a number of practical obstacles that prevented inquests being held. Sometimes the required number of settlers needed to constitute a coronial jury could not be gathered,56 or the expense of conveying a jury across ‘great distance’ was considered too high.57 The lapse of time between a reported death and the investigation of it might render an inquest ‘inexpedient’.58 More typically, even if fatalities were reported there might no body on which to hold an inquest. After frontier ‘skirmishes’ the protagonists would retreat into their respective territories, making it impossible to recover the bodies of the deceased, or for that matter to trace Aboriginal witnesses. After a party of police and station hands were involved in a clash with Aboriginal people in 1847 attempting to recover stolen sheep, for instance, two and possibly four Aboriginal men were killed, but returning to the scene the next morning, the corporal reported, they found that the bodies of the deceased had been taken by their compatriots.59 Depositions were taken from the Europeans involved, but there the matter was left to rest.60

  There were however two cases, both in the Flinders Ranges in the early 1860s, where formal inquests were held into cases where Europeans shot and killed Aboriginal people in what might be described as frontier clashes. In November 1863, an armed party of men on Mr McKay’s station tracked a flock of stolen sheep to an Aboriginal camp; when the Aboriginal men resisted their efforts to recover the property, McKay deposed, his men opened fire, killing three people. Within days of the clash a police corporal and doctor visited the scene and examined the bodies of the deceased. A month later, local Stipendiary Magistrate G.B. Smith conducted an inquest at nearby Mount Remarkable before a coronial jury. The jury found that the European party was ‘justified in firing and shooting at the natives in their own self-defence’.61 The investigation into this incident fulfilled all of the expected requirements of the law. As this so rarely occurred, it begs the question: why in this case and not others? By 1863, pastoral settlement in the southern Flinders Ranges was reasonably well-established. The Aboriginal group which clashed with McKay’s men appear to have been an ochre collecting party from the north, travelling south to Parachilna.62 Whereas most frontier clashes of this sort occurred when Europeans first intruded into Aboriginal lands, in this instance Aboriginal people from further north were travelling through country where European properties had been operating for over a decade, and the infrastructure of government had at least a nominal presence.