Murder at Myall Creek

by Mark Tedeschi

  The oldest of the lot was called ‘Old Daddy’. He was a very old, big, tall man. They went towards the west from the hut. Kilmeister got his horse while they were tying the Blacks. He went with them, and took the pistol with him. I was frightened. They had a great many pistols. I saw the swords in the distance. Kilmeister went with them. I did not keep them in sight more than a minute or two. About a quarter of an hour afterwards I heard the report of two pieces, one after the other, in the same direction as they had gone.

  The women and children who were left with me I sent away with the ten Blacks who had left our station with Mr Foster. It was a moonlit night. I turned them all away the same night, because I did not want them to be killed by those men whom I knew to be out after the Blacks.

  I saw the same men the night after. They came back to my hut whence they had taken the Blacks. They all came except Kilmeister. They stopped there all night. On the next morning, they went out on the same road as they took the night before. I asked Foley if any of the Blacks had made their escape. He said none that he saw; they were all killed but one. I saw the smoke a short time after. Fleming told Kilmeister to go up by and by and put the logs together and to be sure that all was consumed. Kilmeister did go in that direction almost immediately, and remained nearly the whole day. I never went to the spot. Davy went.

  In cross-examination, Anderson admitted that initially he had told Mr Hobbs that he did not know the identity of the stockmen who had come to the huts. He denied that he had been offered his freedom in return for his evidence, stating that he had only asked for protection. He admitted that Magistrate Day had threatened to commit him for perjury if he did not tell him the truth about everything he knew. He said that it was only after that warning that he made a serious attempt to recollect and tell Mr Day everything that he knew about the murders. He tearfully told the court that he had wanted to save Heppita, because of his special connection with her, but she had been forcibly taken away with the others.

  The Attorney General called a number of other witnesses in his case, and when he had completed presenting his evidence the judge invited the defence to present their cases. At this point in a trial in 1838, an accused person might make a statement to the jury from the dock. It was not permissible for him to give sworn evidence as it was considered that this would present a guilty person with an irresistible temptation to tell lies on oath in an attempt to avoid a conviction, and thereby condemn his soul to eternal damnation.6 The solution provided by the law was to permit an accused person to make an unsworn statement to the court. In this case, however, not a single one of the accused men did so. Instead, they all maintained the solidarity that Robert Scott had urged upon them, and remained silent. The defence merely called a number of character witnesses to express how unlikely it was that each of these men of good character and prior good record in the colony would commit such a heinous crime. Counsel for Charles Kilmeister called Henry Dangar to give evidence of his good character. In those days, the most serious challenge that could be made against a man’s honesty and integrity was to say that one would not believe him ‘on his oath’. As the oath was taken in the name of God and on the Bible, a deliberate lie under oath was considered to place the person at risk of eternal damnation and relegation to hell in the afterlife. Dangar gave evidence against George Anderson that he had been a troublesome and unreliable assigned servant who was ‘addicted to lying’, and that Dangar would not believe him on his oath. On the other hand, Dangar gave a glowing account of the honesty and reliability of his stockman Charles Kilmeister.

  Plunkett’s cross-examination of Henry Dangar was rather lame and timid. One can only conclude that he was concerned that Dangar was such a well-known and influential personality in the colony and that he might have a friend or business associate on the jury who would take a dim view of a rigorous challenge by the prosecutor. Plunkett secured from Dangar an admission that he had provided funds for the defence of the eleven accused men. Dangar denied that he had dismissed Hobbs as station manager because of his letter to the magistrate, and explained that Hobbs’s service had ended merely because the term of his contract had expired. This, of course, hid the real fact that Dangar had dismissed him in retaliation for bringing the murders to the attention of the authorities. Plunkett did not ask him why he had taken so long to make enquiries about the murders, or why he had not immediately gone to Myall Creek Station to investigate. Plunkett did not attack Dangar’s evidence by challenging his reputation, which he could have done by questioning him about the circumstances in which Dangar had come to be dismissed as government surveyor some years earlier. Neither did Plunkett challenge Dangar’s personal interest in having the Aborigines removed from an area where they were challenging his pastoral interests. Finally, Plunkett did not ask him any questions about the more underhand activities of the Black Association, and particularly whether he supported the approach that Robert Scott had made to the prisoners in gaol. All of these lines of enquiry would have exposed Dangar’s bias in favour of the accused. Perhaps Plunkett felt that the jury would already know of this, so there was no need to labour the point, or maybe he feared that there was a good chance that the jury felt the same way as Dangar and he did not want to exacerbate their prejudices by a vigorous cross-examination of someone with whom they sympathised.

  Unusually for its time, this trial went into a second day. On resumption the next morning, the Chief Justice summed up the case to the jury at considerable length and in an exemplary and balanced manner. In those days, there was no right for counsel to give a closing address to the jury, so the judge’s summation of the evidence was the only overview that the jury heard.7 The Chief Justice told them this:

  It is clear that a most grievous offence has been committed; that the lives of nearly 30 of our fellow creatures have been sacrificed. In order to fulfil my duty, I must tell you that the life of a Black is as precious and valuable in the eyes of the law as that of the highest noble in the land.

  …

  The point you have just to determine is whether Daddy was the unfortunate man who lost his life as set forth in the indictment, or whether a man whose name is unknown to the Attorney General came to his death by violent means from the prisoners’ hands.

  The judge recapitulated the whole of the evidence, before sending the jury out to consider their verdict.

  Plunkett and Therry thought that the trial had gone well for them, and that the evidence of guilt was overwhelming, but they also knew that there was a tremendous amount of discontent in the community at the prosecutions. The Sydney Herald had actively campaigned against a conviction. Although Daddy had undoubtedly been part of the tribe that had been camping at Myall Creek Station, this was not necessarily sufficient to prove beyond a reasonable doubt that his body was the large one that had been inspected by Hobbs. Unless the jury were satisfied beyond a reasonable doubt that that body had in fact been Daddy’s, they were obliged to acquit on those charges that alleged that Daddy was the victim. However, this still left open the alternative charges of the murder of ‘an Aboriginal male to the Attorney General unknown’, being the person whose large body Hobbs had seen on the pyre. Would a group of twelve wealthy, propertied jurors, most of whom had come to the colony as free men, convict eleven convicts or former convicts of the murder of an unnamed Aboriginal man?

  A mere fifteen minutes after retiring to the jury room to consider their verdicts, the jurors returned to court and gave Plunkett and Therry the answer to this question by announcing verdicts of not guilty on all charges. One of the jurors was alleged to have said later: ‘I knew well they were guilty of the murder, but I for one would never see a white man suffer for shooting a black.’8

  Plunkett was gutted by the verdicts. Although he had been fully aware of the evidentiary weaknesses in his case, he was so overwhelmed by the enormity of the crimes that he had convinced himself that the jury would convict. At this point, Plunkett was faced with one of the most difficult decisions of his career.
In several moments the judge would ask him whether the eleven men who had just been acquitted should be released from custody and returned to their former places of work. If he gave the expected response and answered in the affirmative, it would mark the end of these proceedings and the murders would go unpunished. If, instead, he departed from the usual practice and answered in the negative, it would signal his intention to place the men on trial again for one of the other murders arising out of the same incident. Plunkett realised that he would have no additional evidence to lead at a second trial. Would he accept the jury’s verdicts, or would he insist on another trial on the same evidence? Would he bow to society’s views about this case or would he pursue what his own conscience insistently demanded: that these men had committed a most horrid crime for which they should be punished? He had to make a decision on the spur of the moment, and it was one that, once announced, would be irrevocable. It seemed to Plunkett that this was the defining moment of his life – when he would call on all the moral lessons that he had learned to reach a decision in just a few seconds. It was like a runner who has trained for a year in order to run a defining race over a hundred yards. He was aware that his announcement would be the yardstick by which his entire career, and maybe even his whole life, would be judged. He had no opportunity to discuss it with his junior counsel, Roger Therry, who was seated beside him, let alone with the Governor whose offices were several blocks away, but Plunkett knew that the Governor’s sympathies and objectives were aligned to his own. With only a few, long moments to turn over the conflicting issues in his mind, he reverted to what he had done on numerous previous occasions when he had not known what to do: he asked himself what his noble ancestor, Oliver Plunkett, would have done. What came to him was the revelation that this case was a unique opportunity to demonstrate to all and sundry that the law values the life of an Aborigine as much as that of a white.

  John Plunkett slowly raised himself to his feet and announced to the assembled court that there would be another trial on fresh charges, and then requested the judge to remand the eleven accused men until the following Monday week, 26 November, when he would present a fresh indictment.

  The reaction in the courtroom was immediate and intense. It was almost unprecedented in the short history of the colony that a prosecutor had failed to heed the clear message of an acquittal by a jury on a murder charge. A sense of unfairness overwhelmed the defendants, their counsel and their supporters in the public gallery. Their venom was directed at the Attorney General, whom they believed had embarked on a prosecutorial vendetta from which he was not to be deterred. The reaction in the public arena and the newspapers over the following days was equally hostile.

  11

  AN OFFER REFUSED

  In preparation for the second trial, Attorney General John Hubert Plunkett gave much thought to the defence tactics that had won the accused men acquittals at the first trial. He realised that by putting all eleven on trial at the same time he had enabled them to close ranks and defeat justice by withholding any account of their evil deeds. As the prosecutor, Plunkett had the right to decide which of them would be included on the indictment at the next trial. He decided that in order to strengthen his case and encourage some of them to give evidence against the others, he would charge those against whom he had the most evidence and offer the remaining ones immunity from prosecution in return for their testimony. He selected the four against whom he considered he had the weakest cases, based on the evidence that had been led at the first trial, and made them the offer. He was astounded and most perplexed when they declined his invitation to avoid the gallows in return for their cooperation.

  In fact, the men who were offered this deal did not even have to think about it before rejecting it. They were loath to assist a prosecutor to secure convictions against men they knew well and felt affinity towards, but, most importantly, they realised that if they did cooperate, their future lives would be forever plagued by bitter hatred and the threat of retaliation from other convicts and ex-convicts. Those who were still serving terms would eventually be returned to their previous assignments, where they would have to face their fellows and account for any deal they had struck with the evil prosecutor. In any age, in gaol communities around the world, the worst breach of trust among prisoners is to cooperate with the authorities against a fellow prisoner.

  Despite the rejection, John Plunkett maintained his decision to put on trial only the seven worst offenders, namely: Charles Kilmeister, John Russell, Edward Foley, James Oates, John Johnstone, William Hawkins and James Parry. Some hypothesised that Oates had only been included because he was a Roscommon man and therefore nobody could complain that favouritism had been shown in the selection of the seven defendants by virtue of their origins. There was an even spread of Protestants (Kilmeister, Hawkins, Johnson and Parry) and Catholics (Russell, Foley and Oates). The second trial of the seven men was set down for Monday, 26 November – less than a fortnight after the previous acquittals. Meanwhile, the retrial of the remaining four was adjourned to an undetermined future date and they remained in custody – the Attorney General still hoping that the threat of facing their own second trial at some time might cause them to change their minds about cooperating with him.

  Having failed to convince a jury of the murder of Daddy, Plunkett once again had to decide on the identity of the victim for the second trial. The conclusion he reached was that the most likely path to success was to prosecute for the murder of the young child whose rib bone had been found by Magistrate Denny Day months after the massacre when he inspected the scene with William Hobbs. While it was possible, because of its size, that the rib bone had been part of the body of the boy Charley, Plunkett realised that, once again, he was not in a position to definitively prove the identity of the deceased. Indeed, he was unable to prove that the rib bone had once been part of a boy or a girl. He therefore formulated the charges with two alternative versions of the victim’s identity. It was the murder of either: an unknown Aboriginal child (whose rib had been found by Magistrate Day), or Charley. Once again, there were four alternative scenarios of the mode of death, making a total of eight charges against each accused man – but all essentially referring to the murder of the child whose rib bone had been found by Police Magistrate Denny Day. Plunkett’s rationale was that a fresh jury could not fail to be sympathetic to the murder of a child, and he had the advantage of a physical exhibit from the body of the victim. He knew from experience that jurors did not like to convict where there had been no body, or body part, found. Magistrate Denny Day had not observed the remains of Daddy, but he had seen and taken into possession the rib bone of a child.

  As the day for the second trial drew closer, the Attorney General became increasingly concerned at comments that appeared in the Press – especially the Sydney Herald, which was once again calling for an acquittal, no matter what the evidence. On the morning of 26 November 1838, the day the second trial was due to commence, the Sydney Herald published a report of some Aborigines who had driven away cattle on the Big River. Although it made no direct mention of the Wirrayaraay killed at Myall Creek, the article was clearly designed to influence jurors in the forthcoming trial:

  How long are the settlers to endure outrages such as are here detailed? … We say the government must interfere, or the settlers will set the government at defiance by taking the law into their own hands – by executing summary justice. To this it will come at last, in spite of all the ranters that ever lived.

  Plunkett was convinced that adverse publicity had played a role in the previous acquittal, and he was determined to take action to prevent a fresh jury being tainted by comments in the newspapers. That morning, 26 November, he appeared in court before Justice William Westbrooke Burton, who had been allocated to preside over the second trial, seeking redress in the form of an adjournment of the trial and a court order prohibiting any further public comment on the case – the latter being rarely applied for and even more rarely granted. In fac
t, both sides requested an adjournment: the defence for one day only to consider the multiple charges in the new indictment, which had taken an hour and a half to read; and the prosecution for an indefinite period because of the prejudicial effect of material in the newspapers, particularly the Sydney Herald. Plunkett railed to Justice Burton against those newspapers attempting to sway the decisions of jurors, saying that he had only seen the Sydney Herald that morning and that in his view the publication tended to pervert the course of justice. Applying for a postponement of the trial, he advanced the argument that:

  If the case was brought on and tried now, that it could not have a fair and impartial consideration by a jury who must, in a certain degree, be biased by what they had heard out of the Court.1

  He stated his intention to apply to the Court for an order prohibiting any mention of the case during the trial, but Justice Burton cautioned him against making such an application, so Plunkett abandoned it lest he needlessly antagonise the judge prior to the trial.

  Justice Burton agreed to the matter going over for a single day to accommodate the defence request and, in response to Plunkett’s concerns about prejudicial publicity he assured everyone of his firm opinion that the Court and its jurors would not be affected by outside influences. According to The Australian the next day: