Murder at Myall Creek

by Mark Tedeschi

  We want neither the classic nor the romantic savage here. We have far too many of the murderous wretches about us already. The whole gang of black animals are not worth the money the colonists will have to pay for printing the silly court documents on which we have already wasted too much time.3

  By far the most important step in support of the eleven men was taken surreptitiously by Robert Scott. As a magistrate, he was able to improperly gain access to them in gaol in Sydney while they were awaiting trial. He informed them that sufficient money had been raised to pay for a team of the colony’s best barristers to represent them all. They were so grateful at having their legal fees paid that none of them even considered that in sharing the one team of lawyers some of them might be disadvantaged. Scott spoke firmly to the eleven charged men and assured them that if only they all stood together and none of them broke rank by saying anything in their defence at the forthcoming trial, they would all be acquitted. Scott counselled them:

  Not to split amongst themselves, saying there was no direct evidence against them, and that, if they were only true to each other, they would not be convicted.

  This was sound advice, and it convinced the eleven prisoners to maintain solidarity as a group by not saying anything that could be used against the others at the forthcoming trial. This approach, however, was to have profound consequences for Charles Kilmeister.

  When news reached the Governor of Scott’s access to the prisoners and the influence he had had on them, the Governor was so incensed at a magistrate taking a position against the Crown’s interests that at the next available opportunity later that year he made a point of not reappointing Scott as a magistrate.

  * * *

  As the trial drew near, public agitation intensified. The Sydney Herald requested jurors ‘not to convict persons on charges originating in collisions with the blacks, except upon the most conclusive evidence of wanton cruelty’.4 On the morning before the trial, the Herald issued this extraordinary challenge:

  We say to the Colonists, since the Government makes no adequate exertion to protect you, protect yourselves; and if the ferocious savages endeavour to plunder or destroy your property, or to murder yourselves, your families, or your servants, do to them as you would do to any white robbers or murderers – shoot them dead, if you can …. As to giving the blacks any support from the state – that is, from the labour of the settlers – not one fraction should have they, unless some means be devised to make them labour in return. Place them, too, in a position where they cannot evade justice – that when murders are committed they may be found and hanged, as white men are when they murder.5

  John Plunkett viewed the adverse publicity with dismay, realising that it could well influence the jurors in the trial he was about to commence. With his preparations nearly complete, he was fully aware of the ordeal in front of him: to convince twelve men on the jury to convict the eleven defendants, when the vast majority of inhabitants wanted them acquitted. Plunkett’s greatest test of advocacy loomed before him. Never before had he faced a more formidable task. Never before had he been so sure of the need to succeed.

  10

  TRIAL

  As John Plunkett and Roger Therry completed their preparations for the trial, they considered their case was strong, but they also realised that it depended entirely upon circumstantial evidence and inferences. They had heard from Denny Day that Davy, the Aboriginal servant at Myall Creek Station, had been an eyewitness to the murders, and that Magistrate Day was convinced the young man had spoken the truth, but they also knew that the law prevented them from calling him to give evidence. Plunkett was outraged that he was precluded from putting Davy – the only eyewitness to the atrocity – into the witness box. Neither was it possible for another person to give evidence of what Davy had reported to them, as this would be categorised as hearsay evidence. It made no sense to Plunkett that an eyewitness who was good enough to work for one of the larger landowners of the colony was not permitted to give an account in court because of the colour of his skin and the differences of his religious beliefs. The injustice of it brought back to Plunkett the travesty that had been perpetrated against his famous ancestor because of the differences of his religious convictions. John Hubert Plunkett was determined that this trial – 150 years later – in such a different place and such different circumstances would not be a mockery of justice like the trial of Archbishop Plunkett, but rather a beacon of light to guide others through the storms of bigotry and hatred in the future.

  Plunkett and Therry knew that in order to prove the identity of the victims and the perpetrators they would be relying strongly on the evidence of two crucial witnesses: George Anderson and William Hobbs. Anderson would testify to the following facts: the arrival of the group of eleven stockmen; the Aborigines being tied and led away by the stockmen, including Kilmeister, to the west of the huts; the sound of two shots; the return of the stockmen the following day; the admissions made that all but one of them had been killed; and finally the fact that the Wirrayaraay had never returned to their camp or been seen in the vicinity again. William Hobbs would then provide evidence of having gone to the site of the murders and inspecting the burnt bodies, which he had counted. He could also describe the large torso in the ashes, which he assumed to be Daddy. Other witnesses from other stations were available to give evidence of the group of stockmen searching for Aborigines both before and after the murders. There was also a witness from Newton’s Run who had seen Heppita in the company of the stockmen after the murders. All in all, the evidence to be presented amounted to a good, strong Crown case. But would it be enough?

  * * *

  The trial began in the Western Court of of the Supreme Court building on the corner of King and Elizabeth Streets1 on 15 November 1838. Originally designed by former convict Francis Greenway as the Georgian School, the building plans had been clumsily altered by another, inferior government architect so as to enable the construction of a courthouse for the Supreme Court. Despite efforts to vary the original plan, the courtroom still had the feeling of a converted classroom. The building had only been occupied by the Supreme Court since 1827. The elevated judge’s bench sat imposingly over the body of the court, while the jury box was situated against a side wall. Large windows against the western wall behind the judge drew light into the room, and a steep, narrow staircase connected the dock to the cells below. The wood panelling, which had been installed as part of the conversion, still gave off an odour of authority and respectability. In the afternoons, the sun would often stream through the windows behind the judge, making it difficult for counsel to look at the bench without squinting.

  The presiding trial judge was the Chief Justice of New South Wales, Sir James Dowling. The jury of twelve were all men of substantial property and wealth. The prosecutors, Plunkett and Therry, and the three defence counsel were cheek by jowl at the small Bar table in the body of the courtroom. The eleven accused men were even more crowded in the dock. The public gallery at the back of the court was full of spectators, most of whom were animated supporters of the defendants. The eleven accused men were represented by the three defence counsel: William à Beckett and his two juniors, Mr Richard Windeyer and Mr William Foster, who had all been carefully chosen by Robert Scott and Henry Dangar using the funds collected by the Black Association. William à Beckett was hired not only for his forensic skills but also because of his charismatic appeal to juries. Scott and Dangar considered that à Beckett was far better as a jury trial advocate than Plunkett, even though the Attorney General might be superior as a technical lawyer. Although Mr Windeyer was a junior counsel, and a young one at that, he was clearly a man on the move who would one day become a senior counsel himself, and who would see his junior role in this case as a significant step on his way up the legal ladder.

  The formal part of the trial began with the judge’s associate reading out the charges to each of the accused men and asking them to plead guilty or not guilty. Plunkett and Therry had tho
ught long and hard about the charges that should be proferred. They had debated extensively between themselves how many murder charges there should be and how they should be formulated. In order to understand their predicament, it is necessary to explain some aspects of practice in the criminal courts at that time.

  * * *

  Today, the eleven accused men would be charged at the one trial with all the murders arising from the one incident. In Plunkett’s day, however, it was unacceptable to have more than one murder case heard at a single trial, so Plunkett was forced to decide which of the twenty-eight deaths he would prosecute at this trial. In 1838, it was assumed that the prosecutor would select his strongest murder case to go to trial. If he succeeded, the penalty was death, so there was no point proceeding with any other charges at another trial. If he failed, it was assumed that the prosecutor would give up and not proceed with the other charges, as he had already failed to convince a jury on his best case.

  It was then, and still is, a requirement of the law that a criminal charge must identify with some specificity the offence that the accused is charged with. It is necessary that the victim of a murder charge be particularised in a way that enables the accused to know the precise offence that he or she is charged with. While it is not essential for the victim’s name to be stated, because in some cases it cannot be known, the identity of the victim still needs to be specified in some way. This precision may be established by reference to a body (or body part) that has been found, or in some other way that makes it clear exactly which victim is referred to in the murder charge. Where there have been a number of people killed at the same time, it was, and still is, not permissible to make a general allegation of murder without stating with a degree of specificity the identity of the victim. It was not sufficient, for example, to allege that an accused person had murdered ‘one of the Wirrayaraay’, and to leave it to the jury to decide which one of them had been killed. John Plunkett and Roger Therry were therefore obliged to make a decision which one of the twenty-eight Wirrayaraay they would nominate as the victim in the forthcoming trial of the eleven accused men. Their choice depended upon being able to specify the identity of the victim with some particularity. This proved to be a most difficult decision, because very few, if any, of the bodies had been identified.

  Plunkett and Therry decided to focus on the death of Daddy, because it was his unusually large corpse that arguably had been the only one that Hobbs had been able to identify when he first saw the burnt bodies. However, Plunkett was only too aware that Hobbs could not conclusively state that the large torso seen by him had been Daddy’s. The solution to this problem was to frame the murder charge in the alternative. Plunkett decided that the indictment – the document containing the charges presented by the prosecutor at the trial – would have two alternative approaches to the identity of the victim: one would identify the alleged victim as Daddy and the other would specify the identity of the deceased with the description ‘an Aboriginal male to the Attorney General unknown’, being the man with a large torso seen by Hobbs – whoever he was. This approach of describing the victim in alternative ways was perfectly acceptable in those times. It meant that the indictment would have two alternative charges against each accused man, with each charge expressing the identity of the victim in a different way, and the jury would have to decide which alternative version they found proven. Plunkett considered that this dual approach to the identity of the victim should cover any shortcomings or ambiguities in the evidence as to the identity of the victim.

  Plunkett faced an even more difficult task in this case, in that the exact mode of death of each individual Wirrayaraay at Myall Creek was unknown. The possibilities were: by gunshot, by sword, by fire or by being trampled to death by horse. Today, it is not necessary to specify in the indictment the method of causing death, or the weapon used to kill. This is a detail that, where known, can be disclosed in the Crown Prosecutor’s opening address. However, in 1838 the mode of death was considered an essential ingredient of the charge that had to be specified in the indictment. For this reason, where, as here, there were multiple possibilities of how a victim had come to die, it was necessary for a prosecutor to include an alternative charge in the indictment for each possible mode of death. Plunkett was therefore obliged to include four alternative charges in the indictment, each alleging a different mode of death, and for each of the two descriptions of the victim. This approach meant that there were eight alternative charges in the indictment against each of the eleven accused men, making a total of eighty-eight charges, which took the judge’s associate more than an hour to read, despite the fact that the prosecutor was essentially charging each of the eleven men with the murder of a single person: the man who had been known as Daddy whose body had presumably been seen by William Hobbs.

  * * *

  In his opening address to the jury, John Plunkett summarised the evidence to be led in the Crown case. He explained that George Anderson, the hut keeper, had initially been too afraid to say anything, knowing that ‘so many men at various stations in the district had collaborated together for the destruction of the natives’. He warned the jury about the activities of the Black Association and the risk of prejudice from newspaper articles:

  I am sincerely glad to see prisoners defended by counsel. I am glad to see the present prisoners in that situation, but a rumour has gone abroad that this defence is made at the insistence of an association illegally formed for the purpose of defending all who may be charged with crimes resulting from any collision with the natives. I say that if such an association exists, that if there be men who have joined together for the purpose of defending such men as these, the object of that society is to encourage bloodshed and crime of every description. Gentlemen, I have too high an opinion of you, and of the discrimination of the public at large, to think for a moment that any blood article appearing in any paper or papers will at all influence you in the verdict which you are to give this day. Gentlemen, it has been promulgated from the bench by the judges of the land that the black is as amenable for his evil acts as the white men, and therefore as much entitled to protection by the laws.

  Our record of the evidence in the trial is not in the form of questions and answers, like the official court transcripts today, because court reporters in those days worked for the newspapers and recorded a summary of the evidence. Plunkett called Hobbs to give this evidence of what he had discovered when he returned to Myall Creek Station to find the Wirrayaraay had gone:

  From what Davy said to me, I asked him to go with me and he took me about half a mile from my house in a westerly direction. There had been a shower of rain and the tracks of horses and of naked feet were quite discernible. It was a regular track; there were children’s footsteps; the horse tracks were on either side and the track of the naked feet were in the middle; they were in the same direction as the horse tracks. I arrived at a spot where there were a great number of dead bodies, but the stench was so great that I was not able to be accurate in counting them. I endeavoured to count them and made more of them sometimes than others. The most I made was 28. The skulls which had been burnt were easily discernible. The last number I counted was 20. I will undertake to swear that there were the remains of above 20. I saw some of the bodies. They were very much disfigured. I cannot say how many.

  Hobbs also gave evidence of the personal consequences for him of bringing this matter to the attention of the authorities: his employment with Henry Dangar had been terminated for no other apparent reason.

  The main problem faced by Plunkett during the trial was that, because of the condition of the bodies, he could not produce any witness, including William Hobbs, who could swear that Daddy was definitely one of the victims. During his evidence-in-chief,2 when Hobbs was asked about this issue, he said:

  I did know Daddy. He was an old man. He was the largest man ever I saw, either white or black. I saw a large body there, but the head was gone. From the size of the body I think it was his. I l
eft Daddy on the station. I could not swear that it was Daddy’s body. I am perfectly satisfied within my own mind that it was the body of Daddy. It was lying on its back. There was no head and the fire had destroyed nearly the whole of the flesh. I believe to be the body of a man – the body of Daddy.

  In cross-examination3 by defence barrister Mr Foster, Hobbs said:

  I saw the large body. The legs and arms were gone. I could not swear that it was a male. It was a large frame. I could not swear that the Black called Daddy is not now in existence.

  In re-examination4 by the Attorney General, Hobbs testified:

  I could not swear that Daddy is dead. I have not seen him since. I never saw a female so large as that frame. I never saw any of those persons who were on the station since. I have made enquiries for them.

  The main Crown witness was undoubtedly George Anderson, who was well aware of the significance of his testimony. While he gave his evidence in a forthright manner, he was clearly fearful of those in court – both the accused and their supporters in the public gallery. Of all the people in the courtroom, he had the most to lose if the accused men were found not guilty. He gave evidence that about ten horsemen had arrived at the station armed with muskets, swords and pistols. He identified them by name5 and gave evidence of what happened next:

  The Blacks on seeing them ran into the hut. The men then got off their horses, the prisoner Russell took a rope from his horse’s neck, and commenced undoing it. While he was preparing his rope, I asked what they were going to do with the Blacks. He answered me that they were going to take them to the back of the range and frighten them. Russell went into the hut, and the Blacks were brought out tied [up]. I heard the Blacks crying out for assistance. The mothers and children were crying, and the little ones that could not walk. Russell brought out the end of the rope that they were tied with, and gave it to one of the men on horseback. They then started taking the Blacks with them. The man who took the rope from Russell went in front. They were tied; one black was handcuffed; their hands were all tied with the palms to each other. The rope was a very long one. They took all the Blacks away, except two boys that jumped into the creek as the men were coming up. They left one black Jin with me in the hut; they left another black Jin with Davy; a little child was at the back of the hut while they were tying the Blacks; instead of allowing her to go with the party, I pulled her into the hut and kept her there.