Out of the Silence

by Robert Foster

  Less than a month after this incident on McKay’s station, an Aboriginal man, Pompey, was shot and killed by a prominent settler, Samuel Stuckey, on his run in the northern Flinders Ranges. As in the McKay case, the local Stipendiary Magistrate G.B. Smith presided over a formal coronial inquiry. According to the evidence, Pompey, described as a ‘troublesome and dangerous character’, had led an Aboriginal party that robbed an outstation, threatened a white woman and killed one of Stuckey’s Aboriginal station workers. Stuckey claimed that he endeavoured to take Pompey into custody. When he attempted to flee, Stuckey fired with the intention of disabling him, but killed him instead. The coronial jury, reported in the press as being comprised entirely of Stuckey’s ‘personal friends and servants’, returned a verdict of justifiable homicide.63 Perhaps dissatisfied with the constitution of the local coronial jury, the government ordered a second inquest to be held at the Police Court in Adelaide in May 1864. In the event, the evidence at the second hearing was little different, although more was made of Pompey’s established notoriety. The three Justices who heard the case confirmed the original finding of justifiable homicide. In summing up, the presiding Magistrate added that since ‘Mr Stuckey was looked up to as a chief settler, whom both the whites and the blacks regarded as a protector, he was quite right, both in that capacity and as a good subject of Her Majesty, to take the extreme step which he did for preventing the escape of the native prisoner’.64

  Publicly commenting on the case days after the coronial inquest, the editor of the Register stated that although he would be sorry if ‘lynch law’ were adopted by settlers, he considered the jury to have made the right decision in acquitting Stuckey. There were districts, he wrote, in which ‘no police troopers are to be found’, and where the choice lay ‘between the summary chastisement of native offenders, and their escape from justice altogether’.65 While in the case on McKay’s station the coronial jury found for self defence, in Stuckey’s case the coronial juries found for justifiable homicide on grounds that a known felon was eluding arrest. This was a defence more often employed by the police, whose instructions allowed for use of deadly force in cases where suspects were escaping arrest. Given that Stuckey was an armed settler without the legal latitude of police, the Justices in this case gave even more scope to the reasoning of justifiable homicide than had been allowed in those cases where Aboriginal people had been killed in settlers’ defence of private property. More than that, as a ‘chief settler’ and a ‘protector’ to his servants, Stuckey had been a ‘good subject of Her Majesty’.

  In the end, if holding a properly convened coronial inquiry constituted an ‘exemplary’ show of justice, clearly it did not alter the usual outcome which deemed Aboriginal fatalities at settler hands to be justifiable homicide. As Finnane and Richards suggest in their study of colonial Queensland, where the number of inquests held into Aboriginal deaths was categorically higher than in colonial South Australia, the holding of inquests in itself did little to produce legal accountability on the frontiers of settlement, where securing the interests of settlers was the first task of the rule of law.66

  If a raft of circumstances prevented investigations against Europeans from ever reaching the Supreme Court, another set of obstacles obstructed the successful prosecution of those cases that did. Principally, again, these were the enduring difficulties surrounding Aboriginal evidence and interpretation. In 1849, the same year in which Henry Jones and Thomas Morris were acquitted for the murder of Melaityappa, two other cases against Europeans were foiled by the same reasons. In early July 1849 sheep were driven off Anstey’s station and the owner’s overseer, George Penton, led a party of station workers who tracked the stolen sheep to a coastal encampment near Hardwick Bay.67 When the posse of half a dozen Europeans approached the Aboriginal camp, and allegedly fired over their heads, the group fled into the water. But one man, Nantariltarra, returned to fetch a young child who had been left behind. According to witness testimony, one of the European party, George Field, shot Nantariltarra as he held the child, killing him instantly and causing the child to fall from his arms into the water where she drowned. Sergeant McCullock interviewed two Aboriginal men who had been with the European party when the shooting occurred. Their evidence made it clear that Field had shot an unarmed and fleeing man, and left the child to drown. George Field was arrested and committed for trial. Yet the defence counsel argued that the unsworn testimony of the Aboriginal witnesses was insufficient to sustain the case unless corroborated by other evidence. In the absence of that corroborating evidence there was little likelihood that a conviction would be secured, and the case was dropped.68

  On 1 March 1849 James Brown was committed to trial for ‘the murder of unknown aboriginal natives’. He was alleged to have shot dead a family group of nine Aboriginal people on his station in the south east. In a letter to a friend in Adelaide, the magistrate who committed him observed that there was ‘no question of the butchery or of the butcher’.69 The Protector went to the district and was taken by an Aboriginal witness to the site where the bodies had first been buried and, at a later point, exhumed and burnt in an effort to destroy any evidence. Yet when the case was brought before the Supreme Court in June 1849, the judge was not convinced that the evidence satisfied the criteria spelled out in the Aboriginal Witnesses Act of 1848. It was the Court’s responsibility, he noted, to judge the ‘weight and credibility’ of unsworn Aboriginal testimony, which in serious cases was deemed insufficient unless corroborated by European evidence. The ‘vague and general statements’ of the Aboriginal witness in Brown’s case, he commented, ‘do not appear to have that degree of confirmation upon which a charge so serious can be supported’.70 He gave the prosecution more time to prepare the case, and released Brown on bail of £500.

  The Advocate General made every effort to procure more evidence, but with little success. A European witness who had allegedly seen the crime committed ‘denied all knowledge of the matter’. Brown’s accomplice, his hutkeeper Eastwood, had left the colony aboard a whaling vessel, while another material witness had left for the Port Phillip district. The principal Aboriginal witness had disappeared and was ‘supposed to have been made away with’. The Advocate General noted that all other potential witnesses ‘seemed determined to give no evidence’ that would impeach Brown.71 By November, the case had disappeared from the court calendar, and Brown settled into the life of a wealthy pastoralist. Possibly in response to the case, the Act was amended again to allow a person to be convicted on the sole testimony of an Aboriginal person.72

  The only incident that resulted in the sentencing and execution of a European for the murder of an Aboriginal man occurred in the lower south east in 1846. On 1 September Thomas Donnelly came onto the Mayurra station, inland from Rivoli Bay, and quarrelled with two of the European station workers before storming off. A short time later the workers heard someone calling out ‘White man coming, white man coming’ and then a gunshot. The men, having armed themselves, went to investigate and found an Aboriginal station worker, Kingberrie, on the ground with a gunshot to his abdomen. The gunshot having raised the alarm, Donnelly panicked and fled. Kingberrie died the following morning. Corporal McCullock pursued Donnelly as he made his way toward the border, eventually capturing him on 12 December 1846.73 Donnelly was tried for murder, found guilty, and hanged on 29 March 1847.74 The press was full of self-congratulation at this apparent evidence of the impartial administration of justice in which ‘no difference shall be made on account of the colour or nation of the individual’.75 Yet, in truth, Kingberrie was an innocent by-stander; Donnelly’s intended victim was one of the European station workers. Under these circumstances, the station workers had no incentive to protect him. Although one of the witnesses at the trial revealed that ‘certain parties told me I was not to speak the truth’, the station workers did give evidence against him, breaking the spirit of solidarity that usually offered settlers a protective shield. As the exception that proved the rule, Donn
elly’s case provides the only example in colonial South Australia where the legal process worked to punish violence against Aboriginal people ‘with exemplary severity’.

  Despite the fact that so few Europeans were ever tried for crimes against Aboriginal people, the ineffectiveness of the legal system for dealing with frontier conditions, coupled with the legal fiction that Aboriginal people were protected as British subjects, seemed to create a sense amongst settlers that they suffered most from the law’s inadequacies, and that persistent Aboriginal aggressions went unpunished. An indication of the settler community’s sentiment in this respect was a vituperative letter published in the Register in 1849. The correspondent sneered at the sentimental schemes hatched to protect the ‘poor benighted savages’ while settlers were being ‘plundered, assaulted and mutilated with impunity’. Rejecting ‘the anomalous nature of all our colonial legislation’, he suggested a well-tried solution:

  the best and only means of teaching refractory aborigines the sacred nature of the protection afforded to life and property by British jurisprudence, is to give them a severe lesson when their depredations sanction and demand extreme measures. I could give numberless instances where a little cold lead, well applied, affected a perfectly amicable understanding between the races.76

  Only weeks earlier, another correspondent to the same paper made his opinion equally clear that settlers were far more efficient than the government in redressing their perceived grievances against Aboriginal sheep stealers: ‘we can do more towards the suppression of such crimes in one month than a mounted police force of a hundred men could do in eighteen months’.77 Throughout the nineteenth century settlers regularly complained that the courts never provided them with the justice they required. When the Government Resident at Port Lincoln was reproached by the Governor in 1846 for acting beyond the law with his discretionary methods of punishing Aboriginal crime, for instance by flogging, he responded that such methods were at least beneficial in deterring settlers ‘from taking the law into their own hands.’78 It was critical, he later wrote, that in a remote district like Port Lincoln ‘the settlers may feel that they are as far as possible protected by the Government … that as little as possible may be left to private revenge’.79

  In so far as colonial authorities attempted to implement a rule of law on the frontiers of settlement, difficulties beset the legal process at every stage – from the gathering of evidence to the prosecution of cases in the courts – which prevented it from being fulfilled. These difficulties were shared by and debated in earlier settled Australian colonies: the problems of distance between districts of settlement and centres of law, which made implementing the law difficult if not impossible; a culture of settler solidarity which meant that settlers did not testify against each other; and ambiguities within the law itself about settlers’ rights to protect their lives and property. Even in cases where the law functioned as it should – for instance in holding coronial inquests into Aboriginal deaths, and admitting Aboriginal evidence – Europeans failed to be punished ‘with exemplary severity’ for violent crimes against Aboriginal people. The fact that Donnelly’s case was held up by the South Australian press as an example of the law’s impartiality only helped to veil the reality that on no other occasion did legal process work to protect Aboriginal people by punishing violent crimes against them. In this respect, South Australia’s case differed little from earlier-settled Australian colonies where the ‘rule of law was tested at each stage of [British] expansion, and nearly always failed’.80

  This may be unsurprising, given the pattern of early colonial encounters wherever the settler frontier spread. What is more surprising is that South Australia’s stated principle to legally protect Aboriginal people – a principle driven in large part by Australia’s earlier frontier experiences – seemed actually to produce the opposite effect. The relatively small number of Aboriginal executions in New South Wales (and Port Phillip under its jurisdiction) prior to the mid 1840s indicates amongst other things continuing doubts about the law’s jurisdiction over Aboriginal people as British subjects.81 In South Australia, where Aboriginal people were explicitly declared British subjects from the outset, the number of Aboriginal people executed over the first 30 years of British settlement was considerably higher.82 This suggests that rather than protecting Aboriginal people, the law was enlisted most effectively in punishing them. Perversely, in order to deter settlers from unsanctioned ‘acts of hostility’ against Aboriginal subjects, government officials were anxious that they could demonstrate the law’s capacity to protect settler investments. As the Secretary of State himself acknowledged, settlers would ‘take the law into their own hands’ if Aboriginal ‘criminality’ was not seen to be adequately punished.83 This was also understood by the colonial officials who represented the law on the ground; as one local magistrate put it in 1847, if Aboriginal crime was seen to go unpunished, settlers would act for themselves ‘on the principle of self-preservation’.84 Ultimately, it seemed that the foundational faith in the law’s capacity to treat European violence against Aboriginal people ‘with exemplary severity’ became inverted. Only by treating Aboriginal people with exemplary severity, it seemed, would settler excesses be reined in.

  Jurisdiction in inter se cases

  Behind the difficult questions of Aboriginal people’s amenability to British law was the issue of the law’s applicability to inter se cases. The 1836 R. Vs Murrell case in New South Wales, where the court decided it had jurisdiction to prosecute an inter se murder case (though refrained from finding a guilty verdict), had failed to establish a clear precedent amongst colonial justices elsewhere, who continued to doubt the law’s jurisdiction in interfering with Aboriginal customary law.85 In South Australia, the question of the court’s jurisdiction in cases involving Aboriginal people only was first addressed in 1846 when an Aboriginal known as Larry came before the Supreme Court charged with the murder of Ronkurri. Larry’s defence counsel argued that the court had no jurisdiction in such a case, and he entered the following plea:

  that the prisoner owed no allegiance to British laws. That we had set ourselves down in his country. His offence might be punishable or might not by the laws of his own people, and were we to try him, he might be subject to a second trial by them. This was not a conquered country, nor were there any laws by which we, coming into it, could, without the consent of the natives, try offences among them; though perhaps the law of Nature might justify our doing so for aggressions on ourselves.86

  The judge refused to countenance the plea, insisting that such cases must be tried like any other, and furthermore that bringing such cases before the court ‘would impress upon their minds their amenableness to the law, and teach them the consequences of crime’.87 Yet despite the judge’s insistence on the court’s jurisdiction to try the case, no suitable interpreter for the defendant could be found, and Larry’s case was dismissed.88

  In 1851 three Aboriginal men from Yorke Peninsula, Takkarm, Ngulta Wikkania and Kangar Wodli, were charged with murdering Multalta. The case first came before Judge Cooper in the Supreme Court on 12 May 1851. In his address to the jury, the judge pointed out the problems involved in indictments against Aborigines involving offences committed amongst themselves, but stressed they must be treated like any other British subjects. The grand jury was disturbed by its responsibility and made a presentment to the judge. The jury foreman observed that they had found true bills to answer in two cases in which Aborigines were being tried for murdering other Aborigines. The first case was that of Multalta, who, it was claimed, the Aborigines had treated as a spy might be treated in a European country. The second case was of a woman seriously assaulted by a suitor – but in a fashion said to be customary in Aboriginal society.89 In reference to the judge’s direction to treat the defendants as British subjects, he foreman stated:

  That in so doing many of the Grand Jurors have done violence to their own natural feelings of equity and justice; since, without entering upo
n the abstract question of the rights which possession once obtained, the superior and more powerful people may justly exercise over those subjected to them – the Grand Jurors conceive that if the subjected tribes be uncivilized men, it is morally incumbent on the superior people, in the first instance, to confine their interference to the mutual protection of both races in their intercourse with each other, and not to meddle with laws or usages having the force of laws among savages, in their conduct towards their own race.90