Murder at Myall Creek

by Mark Tedeschi

  4

  MAGISTRATES, BUSHRANGERS AND THE LASH

  The magistracy of New South Wales, as in England, was divided into two types: justices of the peace and stipendiary magistrates. The former were unpaid, generally not legally qualified, and often members of the landed gentry or retired military officers. The stipendiary magistrates, also called Police Magistrates, were paid, more competent, and often legally educated. The Governor held the power of appointment and dismissal, and only the Colonial Office in London could override him, but such occurrences were rare.1 A Governor who wished to foster law and order in a remote district would choose a prominent landowner and invest him with the powers of a magistrate, despite a complete lack of knowledge of the law. These landowners generally possessed their own assigned convict labourers, and hence held a vested interest in perpetuating this slavery-like system and maintaining discipline among their workers. Many of these masters were known to be particularly harsh in ordering floggings of the convicts in their area who had committed infractions – even minor ones. Common offences included ‘disorderly conduct’ or ‘dishonest conduct’. Their power during the early years of the colony was subject to very few restraints, and because of their non-existent or scant legal training, their judgements were often capricious.

  The magistrates (including the honorary Justices of the Peace) not only exercised judicial functions, but also administrative ones on behalf of the Governor. They played a major and direct role in the administration of the convict system, including assignment of convicts, convict discipline, the granting of tickets-of-leave (a precursor to the parole system) and the administration of local police. Their judicial role included much more than one associates with magistrates today. They would investigate crimes, collect evidence, arrest suspects and then, if it was not a capital case, act as judge in a summary trial. In capital cases, they would place the suspects under the Governor’s authority in Sydney, so that the Attorney General or the Crown Prosecutor could prosecute them in the Supreme Court. In remote areas of the colony, the magistrates represented the Governor, the law, the police, the land-granting authority, the judiciary – in fact every arm of government. The quality of magistrates was very variable, and increasingly after 1832 under Governor Bourke an attempt was made to reduce their excesses and idiosyncrasies and to increase the quality of their output by appointing more stipendiary magistrates and fewer honorary ones. Two of those appointed as paid magistrates were relatives of John Plunkett: his first cousin, Captain Patrick Plunkett, who became a magistrate in the Illawarra in 1837; and his twin brother, Christopher George Plunkett, who took up a position in Victoria in 1851, the year that it became a separate colony from New South Wales.2

  Within a short time of his arrival, the new Solicitor General was horrified at the unbridled power of the magistrates, and recognised that it should be restrained and defined. His solution was two-fold. With the encouragement and support of Governor Bourke, with whom he shared many of his enlightened views, he drafted the Summary Jurisdiction Act, which defined the offences that could be dealt with by magistrates and set limits on the punishments that they could impose. Most importantly, it provided that only two or more magistrates sitting together could convict people on charges of theft, drunkenness, disobedience of orders, neglect of or running away from work, abusive language and other disorderly or dishonest conduct. This made it harder for impulsive landowners to order or arrange unduly severe punishment of their charges.

  The second solution adopted by Plunkett was to improve access for magistrates to legal information and case law about their role, responsibilities and restraints. During the period he was Solicitor General, despite his enormous workload during the day, Plunkett found the time at night to write Australia’s first legal textbook An Australian Magistrate – a practical, succinct, everyday guidebook on criminal law practice for the many Magistrates, Justices of the Peace and practitioners scattered throughout the colony, and particularly valuable for those who had not been formally educated in the law. For many years this book stood as a bible for those working at all levels of the criminal courts, and in various iterations it was in everyday use until the end of the century.

  Plunkett lost no opportunity to demonstrate to the community that the magistrates were as subject to the law as anyone else. He had several chances to do this when magistrates were accused of crimes and he was called upon to prosecute them. One such case attracted the attention of the whole colony for many months. In 1837 – his first full year as Attorney General – John Plunkett prosecuted two magistrates, Henry Donnison and Willoughby Bean, who had been charged with the theft of cattle in Brisbane Water (now the Gosford district). Both defendants had been Justices of the Peace in that area and Donnison was a large landowner. Both were highly regarded by their local community. The Brisbane Water police magistrate, Captain Alured Tasker Faunce, arrested and charged Donnison and Bean on cattle-stealing charges and gaoled them in leg irons in the local lock-up before sending them to Sydney for trial. As Attorney General, Plunkett had the task of prosecuting both Donnison and Bean at a trial in March 1837. It was clear to all that Faunce had acted on completely inadequate evidence in arresting them and sending them for trial, but Plunkett was determined to ensure that this case was treated in the same way as any other, despite the high profile of the defendants. In his opening address, he declared that he would approach the case without any undue deference to the defendants’ position, telling the jury that:

  When a prima facie [basic] case appeared upon the depositions, a gentleman was no more entitled to respect than a poor man, and he hoped the time would never come when it could be said of this Colony, as an eminent lawyer, Lord Redesdale, had once said of Ireland, ‘there is one law for the rich, and another for the poor’.3

  Without even retiring to the jury room, the jurors returned verdicts of not guilty. Donnison and Bean subsequently sued Faunce for misusing his office and were awarded huge amounts in damages. The Governor refused to use public moneys to pay the amounts, and Faunce was obliged to pay them from his own pocket.

  After the verdict, the Governor moved Magistrate Faunce to another district, which caused the editor of the Sydney Gazette, George Cavenagh, to publish these strong words:

  The Brisbane Water cases have excited too much of the public attention and aroused too much of the public feeling for us to consider it necessary to enter yet more fully into particulars; it is impossible for any man to view with coolness the brutal treatment, to which a British magistrate and British gentlemen, were subjected at the mere caprice of a holiday military captain. The most charitable conclusion that any one on a review of the circumstances can come to is, that the man himself must be the victim of extraordinary mental imbecility. If we do not come to such a conclusion, it is absolutely dreadful to contemplate the depraved state of feeling which could wantonly urge on its possessor to such extreme length.

  And second, what are we to think of the Governor or Government, who after such a disclosure of the utter inefficiency, to use the very simplest word in our power, of Captain Alured Tasker Faunce, have entrusted him with the protection or the guidance of any being whose life or liberty is of more value than that of an old stock horse, and who have marked their censure of his conduct in another way than by removing him to another and more distant district, where as he will be further from the influence of the press, he may again be able to play such fantastic tricks before High Heaven as make the angels weep.4

  In the next chapter of this colonial saga, Faunce sued editor Cavenagh for libel. Once again the colony was mesmerised. The Chief Justice heard the case with a jury. He commented that:

  This was a case of considerable importance to the public, inasmuch as the character of a magistrate of the Colony was involved on the one side; while the liberty of the press was said to be attacked on the other.

  After retiring for three-quarters of an hour, the jury returned and announced a verdict in favour of Faunce for the amount of one farthi
ng. The jury had starkly declared how much they thought Faunce’s reputation was worth, and many in the community agreed with them.

  * * *

  The convict population of New South Wales lived under precarious conditions in which, at best, they were assigned as servants to benevolent settlers to use as free labour, and at worst, subject to severe disciplinary action from capricious, sadistic masters – some of whom were honorary magistrates and a law unto themselves. The prospect of a ticket-of-leave or a pardon, or even completing a sentence and assuming a place in society, kept most of the convicts from absconding or retaliating against abusive employers.5 A pardon was the most beneficial way of being freed, because it effectively expunged the conviction, but most pardons were conditional on the recipient never returning to Great Britain, so they were effectively forced to remain in the colony. For many persons pardoned, this was no hardship, because their opportunities in the new land were far greater than back in the home country that had been responsible for their incarceration and transportation.

  Some convicts, however, were so badly mistreated that their only choice was to abscond and attempt to survive in the rugged bush. Very few of them had the requisite skills to live in the bush unaided and hence they often survived on the fringes of society by robbing travellers, coaches and outlying houses. Such desperate, escaped convicts were known as ‘bushrangers’, and they were much feared by the population – even by other convicts. Occasionally, bushrangers were aided by local sympathisers who, at risk of severe punishment, provided them with supplies and information to assist in avoiding the mounted police. Some of these escapees lived with Aboriginal tribes and learnt their languages and acquired some of their skills in bushcraft. Parties of mounted police headed by a magistrate and often aided by Aboriginal trackers6 would scour the countryside searching for these dangerous men. If apprehended and brought to trial, sentence of death was the inevitable and swift outcome. As a result, many of them preferred to die in a hail of bullets during a shoot-out with the mounted police, rather than be taken prisoner and brought to Sydney for trial and public execution.

  * * *

  During his four years as Solicitor General, John Plunkett was involved in two significant, high-profile trials that exemplified the unique conditions prevailing in the colony of New South Wales. One of those cases involved a group of convicts who claimed to have been severely abused by their employer, James Mudie, and who as a result had risen up and struck back at their tormentor. This case reminded Plunkett of the many defendants he had represented in Ireland who had committed crimes out of sheer frustration and abject poverty. The other case involved the murder by some escaped convicts of a prominent Sydney citizen, Dr Robert Wardell.

  * * *

  James Mudie was a landowner in the Hunter River district who had developed a successful farming property called Castle Forbes at Patrick’s Plains (Singleton). In 1830, Governor Darling appointed Mudie a Justice of the Peace at the court in Maitland, which gave him power over the punishment of convicts in the area. Mudie and his overseer, John Larnach, who was also his son-in-law, treated many of their assigned convicts with relentless brutality and kept them on rations that were so meagre that their charges sometimes had to resort to crime just to avoid starvation. Mudie and Larnach were well known in the area for the frequency with which they flogged their convicts. As a magistrate, Mudie had the responsibility for issuing tickets-of-leave to convicts, but he would often improperly delay issuing the required documentation in order to get the most out of his workforce.

  When the benevolent and progressive Governor Richard Bourke arrived in the colony in December 1831, he limited lashings to a maximum of fifty for any single offence. His views about convict discipline caused him to come into conflict with some of the landowning employers of convict labour, and none more so than the settlers of the Hunter River Valley, including James Mudie. They believed that Bourke’s soft attitude to convicts endangered discipline and ran counter to the intent of transportation. The population of the colony and the newspapers divided sharply on this issue.

  In 1833, one of Mudie’s convicts escaped from Castle Forbes and came to Sydney to complain to the Governor about the treatment meted out by his master and the overseer, Larnach. The Governor listened to his complaints, expressed sympathy, and gave him a letter of comfort to take back with him to Castle Forbes. On the convict’s return, Mudie had the man arrested and tried before a Bench of his magistrate friends, who ordered the man to serve the remainder of his sentence in an iron gang – one of the harshest forms of punishment in the colony.

  On 5 November 1833, driven to desperation by the frequent floggings and inadequate rations at Castle Forbes, four of the convicts assigned to Mudie broke out and took to the bush, later freeing two other convicts. The six came back to his property and entered his house, intending to kill him in retaliation for the incessant brutality. Mudie was absent, and instead they found his daughter, Emily, who was Larnach’s wife, whom they held captive for several hours. Something decent in the escaped convicts prevented them from doing Emily any physical harm. They left her at the house, taking numerous items with them, including three horses, a silver plate, a double-barrelled gun, a single-barrelled gun, a fowling piece, two muskets, two pistols, a tomahawk, a quantity of supplies to sustain them and several sets of clothing belonging to James Mudie, which they hoped could be used to disguise themselves.

  They continued searching the property for John Larnack and found him at a sheep run. Seeing the six convicts approaching, Larnach dived into a nearby swamp. As he did so, one of the convicts fired three shots at him, but missed, while another called out, ‘I’ll take care you shall never punish another man,’ and, ‘I’ll make you remember flogging.’ Larnach managed to escape and went to a neighbouring property that belonged to Hunter Valley landowner Henry Dangar. The six convicts then disappeared into the bush with their booty. During their time on the run, they became known as the Castle Forbes Gang of bushrangers. They robbed another property and flogged a local overseer known for his brutality. The gang was recaptured at Lamb’s Valley, north-west of Maitland, about ten days later, after a dramatic shoot-out with a group of mounted police led by Magistrate Robert Scott. Robert Scott was a well-known, wealthy landowner in the Hunter River Valley who was politically influential in the colony and had a fearsome reputation for organising posses that would track bushrangers and either kill them or bring them to Sydney, where they would be tried and hanged.

  John Plunkett prosecuted the six bushrangers from Castle Forbes at two trials on successive days for ‘stealing in a dwelling-house and putting in bodily fear’, and for ‘the attempted murder of John Larnach’.7 Roger Therry defended them. The trials took place on 9 and 10 December 1833 before Chief Justice Forbes and two military juries. During the trials, the prisoners all made statements about the atrocious conditions at Castle Forbes, and ‘they attributed their present awful state, to the ill-treatment, floggings, bad provisions, and short weight received of their masters, which had driven them to desperation’. It should be noted that at this time there was a rule of procedure that an accused could not give sworn evidence in his or her own case, and could only make an unsworn statement to the court. This was to remove the temptation to tell lies on oath in one’s own defence and thereby condemn oneself to eternal damnation in hell. One of the accused told the jury that conditions at Castle Forbes were so abhorrent that he would prefer death to returning there. The main defendant, Anthony Hitchcock, asked the court to allow the men on trial to show ‘their lacerated backs to the public gaze to show what tortures they had endured’; however, the Chief Justice would not allow them.8 Nor would he allow further corroborating evidence to be led of their treatment because he did not consider that it raised a valid defence to the charges. All six men were convicted,9 and five of them were sentenced to death, while the sixth was sentenced to transportation for life to Norfolk Island. Three were hanged in Sydney, while the other two were returned to Castle Fo
rbes in an open, horse-drawn cart, sitting on their coffins. When they arrived, the remaining convict servants were forced to watch their execution to deter them from similar misconduct.

  The executions caused an uproar in the community because of what were said to be the intolerable conditions under which these convicts had been forced to live. A newspaper campaign was commenced by the Sydney Gazette, edited by a former convict, William Watt, and read largely by convicts and emancipists, calling for an investigation into Mudie and Larnach. Governor Bourke agreed to hold an enquiry, and appointed Solicitor General John Plunkett, and Superintendent of Convicts Frederick Hely to conduct it.10

  Plunkett and Hely’s report excited intense public interest throughout the colony.11 Their findings partially exonerated Mudie and Larnach; however, they found that about half of the convicts at Castle Forbes had been lashed at some time, which was higher than the average. They criticised Larnach for abusing the law by bringing a man twice before a magistrate on the same day for the same offence so that he would receive a hundred lashes rather than the maximum of fifty. Governor Bourke responded to the report by appointing a resident stipendiary magistrate at Patrick’s Plains to replace the honorary magistrates, like James Mudie, and by failing to reappoint Mudie as a Justice of the Peace.