When the latter cannot be accomplished without the employment of force, then force – even to the taking of life – may be employed. It should, however, be understood, that this is not to be done as a matter of course, or indiscriminately, but that the Police Officer who so takes life, must show that he did it in self-defence, and that there were some peculiar circumstances which rendered the taking of life inevitable …
The Chief Secretary is therefore of opinion that the Instructions should be modified, at least to the extent that under any circumstances the use of firearms is to be avoided, if possible – but that if it become necessary, it should strictly be confined within the limits of that necessity.11
Two days later, the Commissioner printed new orders incorporating much of the language and tone of the Chief Secretary’s letter, but not substantially restricting the degree of license to use firearms on suspects resisting or eluding arrest. Even within the letter of the law, the open-ended nature of police instructions did, in fact, allow police in remote locations to fire upon Aboriginal people almost with impunity.
Policing and the tyranny of distance
Not surprisingly, the men who policed Australia’s frontiers faced a complicated network of difficulties which did not apply to the settled districts, at the heart of which was facilitating the expansion of pastoral settlement in the face of Aboriginal resistance to it. The conditions under which they executed their duty were hard. They were stationed at the most remote locations in the colony, accommodated in makeshift police huts or camps. In these isolated postings, they were responsible for protecting relatively small numbers of Europeans running sheep and cattle over vast tracts of country. Expected to travel over hundreds of kilometres for weeks without respite to locate suspected felons, secure them, and transport them great distances as prisoners, they were usually under-resourced. Technically, any crime required the police to respond by making arrests where possible and, if a charge went forward, to take it before a Court. But the difficulties of distance encouraged a margin of flexibility in the interpretation of the law.
The first problem the police faced was the difficulty of apprehending Aboriginal suspects in often unfamiliar and difficult country. Inspector Henry Holroyd and Sergeant Geharty, long-serving officers in the Port Lincoln district, knew these issues only too well. On 1 June 1855 Aborigines killed Peter Brown, a shepherd employed on Dr McKechnie’s run near Franklin Harbour on the west coast of the colony. Holroyd and Geharty were out for three weeks searching for the suspects but gave up when their horses became ‘knocked up’ and their provisions ran out, having failed to find ‘the slightest trace of the Blacks’.12 In explaining their lack of success, Geharty pointed out that five days had elapsed before the shepherd’s disappearance was reported, meaning that the tracks were no longer distinct. Another officer, Trooper Woods, was earlier on the scene but, as Geharty condescendingly observed, he had only ‘recently joined the force’ and ‘it would be the last thing he would think of to take natives with him’ as guides and trackers. Making matters worse was the fact that the country was covered in dense scrub ‘where the native gets his living’ and through which he could travel, unlike Mounted Police, without ever having to move into ‘open country’.13 Not only did Aboriginal people’s knowledge of the country make their capture difficult but, as Holroyd pointed out, they ‘know all the moves of the Police but too well’.14 Speaking from fifteen years’ experience, Geharty wrote that Aboriginal suspects were only to be taken ‘by stratagem’:
That is by tracing by another native in the scrub, and teaking [sic] them in their wurleys at night or seeing their fires from some rising ground in the scrub at sundown when they retire for the night.15
If securing Aboriginal suspects was difficult enough, holding them as prisoners proved no less a challenge. After weeks of searching, Police Troopers Cooper and Woods eventually captured five men suspected of involvement in the murder of Peter Brown. After a week’s travel through 250 miles of scrub, the troopers arrived at the Salt Creek Police station. PT Cooper was on guard that night but, ‘literally worn out with fatigue’, he fell asleep and four of the prisoners broke their handcuffs and escaped.16
The sheer monotony of reports concerning escaped Aboriginal prisoners during the 1850s and 1860s drove Commissioner Warburton to distraction, leading him to issue ever-more detailed instructions as to how they should be secured. After the prisoners escaped from Cooper’s custody at Salt Creek, Warburton made the following suggestions to Inspector Holroyd:
I would request your attention to the modes of securing native prisoners – the ordinary handcuffs are almost useless for such a purpose, unless used as fetters, but as an additional precaution I think a chain should be passed round their necks being secured at each man’s throat with a pair of handcuffs; when any number of prisoners have to be secured for the night, they should be linked together hand to hand, the outer hands of the two end prisoners being so fastened to fixtures as to prevent any one man getting both his hands together.17
He concluded by observing that ‘as the Natives are slippery to a degree almost inhuman, it behoves the police to be proportionately careful, so that they may not be outmatched’.
Even seemingly secure lock-ups built of stone and mortar seemed inadequate. In May 1855 eight Aboriginal prisoners serving a sentence at Port Lincoln gaol escaped from their cell. According to the police, one of their friends passed them a small iron bar through their cell window which they used to cut away ‘about 2 feet square of the wall’. According to one of the constables on duty, the noise of their digging and scraping was drowned out by the sound of the prisoners ‘singing and corroberying in their cell’. To affect their escape they managed to ‘wrench open the patent padlock which confined them by neck irons’ to the wall.18 All the clichés of the prison-break seemed to conspire to torment Commissioner Warburton; several years later at the Mount Remarkable lock-up a prisoner used a piece of soap that he had secreted in the pocket of his prison uniform to help him slip off his handcuffs and make good his escape.19
Warburton took the issue of Aboriginal prisoners escaping custody very seriously. He was willing to show leniency to officers who took every reasonable precaution to prevent escapes, but where he believed they had failed in their duty he responded harshly; troopers faced pay cuts, demotion and even dismissal if their actions were judged negligent.20 Warburton had introduced these sanctions to improve discipline within the ranks, but they had created a vicious circle: Aboriginal prisoners, knowing the treatment that awaited them, were keen to escape, while police officers, fearful of the sanctions they might face if prisoners escaped, resorted to ever more severe methods of securing them.
An equal difficulty facing Mounted Police was finding and keeping witnesses, without whom a case was unlikely to be sustained. Often the only witnesses were Aboriginal people, unwilling participants in the British legal system. Aboriginal witnesses – variously puzzled, afraid or affronted – often sought the first opportunity to escape. The response of police was to treat their witnesses in the same way as their prisoners. When in 1867 an Aboriginal prisoner arrested on suspicion of murder and the Aboriginal witness escaped together from the Blinman police station, the police trooper fired at them both before they disappeared into the scrub. Reading his forwarded report, the Protector of Aborigines complained that had the trooper’s bullets killed the witness, he would ‘have committed a very serious crime’.21 The Protector drily noted that the witness’s treatment, ‘handcuffed and chained to the supposed murderer was not calculated to give him a very exulted idea of white man’s justice, and was very likely to provoke the attempt he afterwards made, at all hazards, to escape.’ He observed that the ‘troopers in the far north are too ready with their firearms in their dealings with the natives; and I trust that the Commissioner of Police will warn them of the very grave responsibility they thus incur’. Required to respond, the Commissioner of Police wrote a memo advising police to show more caution in distinguishing �
��between culprits and innocent persons, it is bad enough to manacle and confine the witness and treat him as a guilty man, but it is worse to shoot him’.22
The dilemma of how to secure Aboriginal witnesses troubled Warburton as much as the problems of capturing and securing Aboriginal prisoners. If a suspected felon was committed for trial on a serious charge, he was manacled and transported to Adelaide for a trial before the Supreme Court, the witnesses travelling likewise in chains. Once in Adelaide the prisoner was remanded to Adelaide Gaol while the witness, in all likelihood, shared an adjoining cell. The Commissioner of Police occasionally pondered alternatives, but nothing proved satisfactory. Leaving the witness in the care of the Protector of Aborigines was a possibility rejected because ‘he has no proper means of securing him’;23 the Destitute Asylum was another option, but it was ‘fearfully overcrowded’ and afforded ‘no security as a place of custody’.24 It was simply more effective to incarcerate the witnesses. The Commissioner more or less conceded that this practice was improper, if not illegal, but he defended it on the grounds of utility: ‘In former years the practice of committing Native Witnesses obtained, and though no law justifying such commitment exists; still as a matter of necessity it is I think the best mode of proceeding’.25
Gathering European witnesses to take cases to trial could be just as problematic. Sometimes a case could not proceed because station owners worried that to release station workers to appear as witnesses in court would leave their isolated property vulnerable to Aboriginal attack. In 1858, for instance, after John Jacob’s station was attacked, Mounted Constable Burtt spent weeks searching for and then escorting the Aboriginal suspects 400 kilometres south to the magistrate at Mount Remarkable.26 The magistrate was not convinced that the evidence was sufficient to sustain a case so he ordered the Constable to return to the station and secure witnesses. Jacob, however, refused to send down his station workers as witnesses for the hearing, in the belief that if the Aborigines who had attacked the station became aware of its diminished numbers, they might attack it again.27 Burtt was then required to travel south to Mount Remarkable once again to report this to the magistrate, who then promptly released the prisoners.
The frustrations of having to transport prisoners and witnesses hundreds of miles, as well as the belief that if punishment was not immediate then it was not effective, led some police to consider that the ends of justice might best be served in other, more pragmatic ways. Summary punishment of Aboriginal ‘offenders’ was one strategy sometimes employed by officers of the law. In 1853 the Sub-Protector of Aborigines and local magistrate Henry Minchin, in the company of a police corporal, had an Aboriginal man suspected of robbery tied to a tree at the Port Ferguson Police station and flogged.28 In 1867, after a series of ‘depredations’ on Umberatana and Mt Fytton stations, the owners were loathe to enter the long and expensive process of prosecution but instead asked the police inspector ‘to flog them and let them go’.29
Settlers also were known to resort to this strategy. In his reminiscences of the Flinders Ranges in the 1850s, pastoralist Frederick Hayward describes holding a ‘drumhead court-marshall’ for cattle-killing: he tied his Aboriginal prisoner up and flogged him with a stockwhip.30 Hayward’s actions were motivated by a previous experience where he had apprehended a suspected sheep-stealer and taken him before a magistrate, only to see the prisoner released because of a lack of convincing evidence. Samuel Stuckey, the pastoralist whose fatal shooting of Pompey had been taken as ‘justifiable homicide’, recalled making ‘a useful man’ out of one Aboriginal man by chaining him to an iron casting for three days before releasing him.31 Reports of this sort of summary punishment arose commonly in other frontier districts. After sheep were stolen from James Thompson’s run on Eyre Peninsula in October 1861, the owner gathered a group of six or seven Aborigines together with the promise of a ‘big breakfast’, but instead of being given food they were surrounded by station workers and beaten with sticks. An ex-policeman who reported the incident claimed that one man was held by the overseer and ‘beaten until he was nearly dead’.32 In December 1863 two station workers named Barton and Miller on a property near Venus Bay thrashed an Aboriginal man so badly that he died. The men were put on trial for the death, but the jury returned a verdict of not guilty.33
The difficulties of effectively applying the legal system to the conditions of the frontier led some government officials to advocate a provisional code of law to deal with Aboriginal ‘troubles’ in outlying districts. The employment of such a provisional legal code had in fact been recommended in the 1837 Report of the Select Committee on Aborigines when the colony of South Australia was first established.34 In 1857, on the grounds that the ‘requirements of British Law’ were inapplicable to Aboriginal people, Commissioner of Police Warburton recommended to the government that they should no longer be considered subject to British law but rather subject to their own traditional law, albeit under the umbrella of colonial authority. Such a system would relieve the police from their current dilemmas in frontier policing, and would be less expensive to the government. This was a legal system, ‘easy of execution and sound of principle’, that pertained in other British colonies like India, where Warburton had previously been posted, and he saw no reason why it should not be equally appropriate to Australia.35 Against the government’s tenacious insistence that Aboriginal people were British subjects, Warburton argued that Aboriginal people comprised independent communities, were governed by their own laws, and would resist incursions upon their land to the extent that they were able. In his view, the repeated dilemma of the police was not that they had to police Aboriginal people as British subjects, but that they had to police them into becoming British subjects.
Not surprisingly, Warburton’s recommendation of a provisional code of law found no purchase with the government in 1857, since it could hardly acknowledge the existence of any alternative legal system, even under the umbrella of British law, when the official position was that Aboriginal people were British subjects. In 1860, at the Select Committee of Inquiry into the condition of Aboriginal people in the colony, Warburton raised the concept again in different terms. What was needed, he argued, was a system of justice suitable for application to Aboriginal people that could be delivered immediately and locally. The Committee subsequently recommended allowing the Protector of Aborigines the power to ‘hold a court, and dispense justice summarily, in all matters of dispute between the natives themselves, as also between Native and Europeans’, with the exception of capital offences.36 Although the recommendation was not put into practice, the discussion of it was symptomatic of the vexed, ongoing debate amongst police and government about how to effectively police Aboriginal people in remote areas. The police, as the Commissioner was only too aware, were few in number and responsible for patrolling vast districts; they had little in their armoury to prevent Aboriginal attacks on settlers’ property, beyond retaliatory raids for punitive effect.
By the early 1860s, as European settlement expanded in the north and Aboriginal attacks on stations escalated, Warburton increasingly came to the view that the rule of law, as it pertained, was patently inadequate to the realities of the frontier. This was also understood by the ordinary police who patrolled the pastoral frontiers, like Corporal James Wauhop, who observed that wherever the settlers expanded into a new district, Aboriginal people would be ‘sure to show resistance’.37 In mid-1863, Corporal Wauhop led a police party in response to an Aboriginal attack on Mudnowadna station, in which station workers had been threatened and cattle were killed. Having tracked the suspects, Corporal Wauhop’s party eventually confronted a group of about 40 Aborigines near Mount Deception. In his report, Wauhop stated that his men had fired upon the Aboriginal group because the police party was threatened. He could not say how many people had been shot, but had no doubt some had fallen. He concluded by offering the view that ‘Breech loading rifles are the only weapons that would intimidate such a determined lot of natives – f
or they appear to take no notice of pistols’.38
Warburton elected to take ‘active and effectual measures’ to suppress Aboriginal attacks on pastoral stations in the north.39 He arranged a redistribution of troopers in order to increase the available strength of police at the far northern police station at Angipena, and bolstered supplies of arms and ammunition for them. On receipt of this information, the Protector of Aborigines James Walker was alarmed: ‘a considerable addition has been made to the Police force at Angipena, and I was informed this morning at the Armory that a supply of breech-loading rifle carbines with ammunition, is about to be sent to the same station’. Aboriginal people, of course, were technically British subjects, and Walker called for caution against the police taking ‘such war-like preparations’ against them.40 Warburton responded with contempt:
I have the honour to inform the Chief Secretary that the Police have no desire to use force, if it can be avoided, against the Natives – should the peaceful provisions of this Protector be first tried upon them and succeed in turning them from their evil ways, I shall then have great pleasure in restoring the ‘warlike preparations’ to the place from whence they were taken – As matters at present stand – black is white and white black – the Settlers require Protection and the Savages punishment.41
Only a week earlier, Warburton had written to the Chief Secretary about his frustration with the gap he perceived between the ideal of legal process and the realities of the police’s role in the frontier districts. The ‘legal punishment’ of Aboriginal offenders, he wrote, was ‘next to impossible’ when police were required to pursue Aboriginal people who were not in any practical sense bound by British law. What is more, the practical difficulties of responding to the crime of stock theft, well after the event, often made legal requirements impossible to fulfil. Reporting on troubles around Lake Hope, he added:
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