Murder at Myall Creek

by Mark Tedeschi

  Day was received everywhere outside Myall Creek and Newton’s very coldly from the first. As he moved west this increased to barely concealed hostility. The length of his stay astonished everybody; feelings became very incensed; shepherds etc hid near an area called Mungi Bundi [and] it is told that a herd of cattle was deliberately stampeded in the troopers’ direction (by whites not blacks), which was made an alibi for several shots to be fired.4

  On 28 July, Day arrived at the Myall Creek Station and, with William Hobbs as his guide, inspected the massacre site. It was immediately apparent that since Hobbs’s previous visits six weeks earlier a concerted effort had been made to strip away all evidence of the murders. The vast bulk of the human remains that Hobbs had previously observed had been removed, leaving only numerous small fragments of bone and the remains of a fire. Day expresssed the opinion that the area had the appearance of having been swept clean. The only body parts that Day was able to find and take into possession as evidence of the massacre were a lower jawbone, a child’s rib and a few teeth. The child’s rib, no more than four inches in length, was to play a major role later in the case.

  Magistrate Denny Day spoke at length to those who were employed at Myall Creek Station. George Anderson initially denied having recognised any of the marauding stockmen; however, Day could sense that he was not telling him everything he knew. Day spoke at length to Davy and heard the only first-hand account of the murders. Although he believed Davy’s account to be accurate, he did not bother to get a statement from him, as Davy was an Aborigine and hence his testimony was inadmissible in court. Day intensively questioned Charles Kilmeister, who denied any involvement in the murders, but other evidence already collected strongly implicated Kilmeister, so Day charged him and took him into custody. As Kilmeister was leaving the hut where he had been questioned, he could not resist trying to explain his participation in the murders, saying to Denny Day:

  If you knew what they threatened to do to me, I would not be blamed.

  Day assumed that Kilmeister was disclosing a threat from the Wirrayaraay. This misunderstanding was to have severe consequences for Kilmeister at a later time.

  Denny Day next questioned hut keeper George Anderson, who in the meantime had developed a sense of guilt for having failed to report all that he knew. Anderson had told another Dangar employee that he was ‘sorry that he had not told the whole affair’. Day suspected that Anderson knew much more than he had previously admitted, so he threatened to charge him with perjury unless he cooperated with the investigation. Anderson then disclosed to Day the identity of eight of the perpetrators, including Kilmeister. He also provided details of some of the victims, including the little boy, Charley. Anderson was terrified of retaliation from the men he had implicated, or their colleagues, and he begged the magistrate to protect him, so Day took him into ‘protective custody’. Over the ensuing weeks, Day gathered further evidence, and located and arrested further suspects who, as convicts, ticket-of-leave men, or men freed by servitude, were still in the district. Only one of them, James Parry, expressed any regret for what he had done, but like all the others, he was not prepared to give information implicating any of his co-offenders.

  By the end of his investigation, Captain Day had locked up eleven of the twelve perpetrators and charged them with the murders. The only one to escape his roving round-up was the ringleader, John Henry Fleming. Fleming had the advantage that, unlike the eleven convict or ex-convict stockmen who had been rounded up, he had unlimited freedom of movement and extensive family support, not just in New South Wales but also in the settlement at Moreton Bay (Brisbane) and in Van Diemen’s Land (Tasmania). His older brother, Joseph, had a residence in Moreton Bay (Brisbane); his father lived in the Ebenezer–Macdonald Valley area;5 his grandfather and uncles resided in Van Diemen’s Land; and his six other siblings were spread throughout the Hawkesbury River district. Day went looking for Fleming at Mungie Bundie Station on the Big River, but he was nowhere to be found. It was thought that he may have gone to his father’s home in the Macdonald Valley, but enquiries there failed to locate him. The horse that he was supposed to have ridden at the time of the murders was found at Morpeth Wharf on the lower Hunter River, which had probably been left there as a decoy. Magistrate Day considered that Fleming may have boarded a ship bound for Van Diemen’s Land, so he caused enquiries to be made of ships’ captains on the Sydney–Van Diemen’s Land route and for Fleming’s description to be circulated among them, but no information on the man’s whereabouts was forthcoming. A reward of £50 was offered for Fleming’s capture, which was described by the Sydney Herald as an insult to those who were native-born, because it was not much more than the £10 offered for the apprehension of absconding convicts.6

  In fact, evidence obtained much later suggests that Fleming hid on a property at Surat, 300 miles west of the Moreton Bay settlement, where his brother, Joseph, and brother-in-law, Thomas Simpson Hall, owned a large property.7

  As news spread of the arrest and charging of such a large group of men for the murder of Aborigines, colonial society was split. A clear majority of whites took the position that the Aborigines were ‘pests’ and ‘lawless savages’ who needed to be driven off the land so that the colony could continue to expand unhindered. The issue provided a rare focus of unity between many of the free settlers, the emancipists and even the convicts. Only a small minority of people considered this to be an opportunity to achieve justice for the victims of a terrible crime and to establish the rights of Aboriginal inhabitants to live on their traditional grounds without the threat of annihilation.

  The eleven men arrested by Magistrate Day were walked in chains and under guard for 200 miles to Muswellbrook in the Hunter Valley. During this march, John Russell managed to escape, but was later recaptured. The prisoners arrived at Muswellbrook on 10 September. From there, they were transported in a cart, still in chains, to Sydney, where a date was set for their trial on charges of murder.

  It was at this time that Governor Gipps advised John Plunkett that he wished him personally to prosecute the trial. Realising the significance of the matter, without a moment’s hesitation, Plunkett agreed. It would have been open to him to request that the Crown Prosecutor, John Holden, conduct the case, but he entertained no such thought. He was not perturbed by the fact that he would face the enmity of the influential pastoralists whose interests had been advanced by the murders – and who had probably encouraged, if not actively ordered, them. He was not dissuaded by the fact that for the first time since the colony had been established fifty years earlier almost every echelon of this multi-layered society would be behind the accused men. Already, all but one of the newspapers had joined forces in opposing the prosecutions, and a large group of influential property owners had banded together to form an organisation that they sarcastically named ‘the Black Association’, in order to support the accused men and to raise funds for their defence. Even the convicts, who identified with their fellow prisoners because they were facing the death penalty, saw the prosecution as yet another attempt by their overlords to use the law to oppress and punish them. This would surely be the most unpopular prosecution in the short history of the colony, but such a thought only served to strengthen Plunkett’s resolve to follow what his conscience told him – that these eleven men and their leader, who still remained at large, had perpetrated an abomination that had to be punished if Christian values and the rule of law were to prevail in this remote part of the British Empire. Thankfully, he had the full support of the Governor, who was firmly in favour of the trial, not only because of his personal views but also by virtue of his instructions from the Colonial Office in London.

  The only twinges of doubt, which Plunkett quickly laid aside, came from his knowledge that his wife, Maria, would be distraught and would pester him endlessly for yet again disrupting her social standing. He contemplated the much greater trials and tribulations faced by his illustrious ancestor, Archbishop Oliver Plunkett, and the far mor
e serious consequences that this martyr had borne. When he returned home at night after discussing the case with the Governor, Plunkett reassured himself by once again taking out the ancient chalice, holding it delicately in both hands, and praying that he would find the strength of mind and purpose to carry out God’s will and to achieve justice for those whose lives had so cruelly been brought to an end because of the colour of their skin, their different lifestyles and their distinctive cultural and religious beliefs.

  Plunkett immediately began preparing the prosecution case and, realising that it was far more complex and significant than any of his previous criminal trials, he recognised that he needed a junior counsel to assist him. Without thinking twice, he chose Roger Therry. While Therry was less able as a lawyer than Plunkett, he was a most devoted and diligent counsel at the private Bar of New South Wales. They had previously worked together – and more often against each other – and had a history in common going back to Trinity College in Dublin. Plunkett was confident that Therry was one of the few men at the Bar who would be totally unaffected by what other people thought about the case. The only drawback of having Therry as his junior counsel was that, as they were both Irish Catholics, their collaboration would inevitably raise accusations that this was a conspiracy against the Anglo majority, even though the defendants included Anglicans and Catholics, English and Irish, and even a fellow Roscommon man. Plunkett’s greatest regret was that John Fleming, the ringleader of those responsible for the massacre, had evaded capture, despite overwhelming efforts by Police Magistrate Captain Edward Denny Day.

  9

  DANGAR’S DILEMMA

  In the 1820s, as an assistant government surveyor, Henry Dangar explored and mapped the Hunter River Valley, and in return was granted 300 acres of valuable grazing land near Patrick’s Plains (Singleton), on which he built a homestead, Neotsfield, and another 700 acres near Morpeth. In 1827, as a result of a disputed land claim, he was found guilty by a Board of Inquiry of using his public position for private gain and was dismissed from office by Governor Darling. In the early 1830s, he explored the Liverpool Plains district in the north of the colony and made extensive land claims there in the name of his employer, the Australian Agricultural Company. In June 1833 he retired to Neotsfield and quickly developed it as a successful grazing property. By this time, he was already a wealthy landowner.

  While surveying the Hunter Valley and pursuing his pastoral interests, Dangar had extensive contact with the local Aborigines. He believed that the best way to protect livestock was to reach an accommodation with the Indigenous population, rather than warring with them. Dangar adopted the same approach when squatting on his two properties in the Big River district. Dangar also had an enlightened view of dealing with his employees, for which he was rewarded by long and faithful service. Dangar selected William Hobbs as his superintendent at Myall Creek Station and Pond’s Creek Station because he believed that the man had the capacity and personality to deal with the local Indigenous population in a cooperative and humane manner, and thereby avoid stock losses. He gave Hobbs the choice of which assigned convicts he wanted to accompany him to the Big River, because Dangar knew that his men would have to get along together and have confidence in each other if they were to survive so far from civilisation. Hobbs selected four men from the convicts assigned to Mr Dangar on the basis that he could rely on them to conscientiously attend to the stock and not to needlessly antagonise the local indigenous people.

  Dangar heard about the murders at Myall Creek well prior to the receipt of William Hobbs’s letter, and by the time he received it, he was already aware that the Governor had ordered Magistrate Day to investigate, and so Dangar did not feel the need to take any immediate action. It was only in early September, after Denny Day had finished his investigation and rounded up the eleven accused men and sent them on their way to Sydney, that Dangar finally felt the urge to go in person to Myall Creek. On the way from his home at Patrick’s Plains, he stopped at Muswellbrook to speak to Magistrate Day, who gave him a full report on what he had discovered about the murders. Dangar listened carefully to Magistrate Day, but gave nothing away about his own views. This was a carefully orchestrated fact-finding mission before travelling to his station further north. Dangar then proceeded to Myall Creek, where he spoke at length to his superintendent, William Hobbs. Once again, he was reticent to expose his own views, but interested to hear everything that Hobbs had to say about the matter. It was a case of carefully assessing the situation before forming his own opinion. Dangar was not able to speak to Charles Kilmeister, because the man had already been arrested and taken to Sydney by Denny Day. Nor was he able to speak to George Anderson, who was in protective custody.

  Henry Dangar was faced with a serious dilemma: should he support Hobbs and Anderson, who had done the right thing in cooperating with Day’s investigation, or should he join the vast majority of landowners in the Hunter River and Liverpool Plains districts, and indeed most white people throughout the colony, in opposing the prosecutions? If he took the former approach, he would alienate his fellow landowners and the vast majority of others who were against the prosecution. If he adopted the latter attitude, he could compromise his reputation as an enlightened employer with a progressive view of dealing with the Aborigines.

  By the time Dangar returned from Myall Creek to his principal home at Patrick’s Plains, he had made a decision. Instead of supporting his embattled superintendent William Hobbs and his hut keeper, George Anderson, Dangar resolved to go on the warpath on behalf of the accused stockmen, particularly his own, Charles Kilmeister. In coming to this decision, Dangar aligned himself with all the other major landowners in the colony, but he also did great harm to his long-term reputation. He began by dismissing William Hobbs as his station superintendent, with the intention of weakening Hobbs’s credibility. Hobbs, who had been an exemplary superintendent for two years, was devastated to be cast aside for having told the truth about the murders. To lose employment in the empire of Henry Dangar was indeed a calamity.

  On his return to his home property at Patrick’s Plains, Henry Dangar got together with his near neighbour, Magistrate Robert Scott, who was also a wealthy settler, owning properties in both the Hunter and Gwydir River districts. Robert Scott and his brother Helenus Scott owned a property called Glendon on the Hunter River near Patrick’s Plains. Robert had won a reputation as a bold and daring settler by his involvement in the capture of a number of bushrangers in the area. In 1825, he led a party that captured a gang of bushrangers known as ‘Jacob’s mob’, who had been robbing settlers throughout the district. As mentioned previously, in 1833 he joined John Larnach and a group of mounted police in the pursuit of absconders from James Mudie’s property, Castle Forbes.1 They discovered the runaways in a deep ravine near Lamb’s Valley, whereupon Scott shot dead one of them, James Henderson, when he refused to lay down his gun, and the others were captured. In 1833, Robert Scott was appointed an honorary magistrate, and he gained a reputation for initiating and supporting efforts to hinder the ‘depredations’ of Aborigines and bushrangers.

  Both Dangar and Scott had direct proprietary interests in the suppression of the Aborigines, and both were implacably opposed to the prosecution of those accused of the Myall Creek murders. They called a public meeting at Patrick’s Plains, to which they invited all the local property owners. The meeting was well attended and reported extensively in the newspapers. At the first meeting, they established an organisation that, ironically, they called the ‘Hunter River Black Association’, in order to raise money for the defence of the eleven charged men. Scott was appointed chairman. The Governor was scandalised at what he considered to be an illegal association to support those who had committed serious crimes, and he was particularly enraged that a serving magistrate was behind it.

  The support from the public and the newspapers for the Black Association was overwhelming, and within a short time enough money was raised to pay for the best legal counsel in Syd
ney to represent all eleven men. Dangar contributed £5 of the total amount of £300 that was raised. Another contributor was John Larnach.2 The real reason behind the raising of this money was not only to provide the best counsel to represent the men who had been charged, but also to ensure that all eleven would be represented by the same counsel, so that no individual defendant would be tempted to embark on a separate defence by implicating the others. The association also initiated a petition which was sent to Governor Gipps with signatures from many livestock owners in the north-western districts seeking more permanent support against ‘renewed Aboriginal aggression’. Henry Dangar was one of the first signatories.

  Not everyone supported the accused men. The publicity surrounding the murders at Myall Creek caused colonial philanthropists to rally at two well-attended public meetings in Sydney in October 1838. These events resulted in the formation of the ‘Australian Aborigines’ Protection Society’, an arm of the British organisation of a similar name. The leaders included John Dunmore Lang, Presbyterian minister, writer, politician and activist; Reverend Lancelot Threlkeld, missionary to the Aborigines; and George Augustus Robinson, who had previously been Protector of the Aborigines in Van Diemen’s Land.

  A concerted campaign was launched by supporters of the prisoners in an attempt to convince the Governor to release them, however, Gipps held firm in his resolve to make this case a lesson to others. The prominent Sydney Herald strongly supported the accused men, and advanced views that were widely held in the community at the time: