Mr Justice Burton said that the Attorney General could take what course he thought proper, but he would advise him not to be hasty in his application, nor in the course he intended to adopt. For in his [Mr Justice Burton’s] opinion, he thought, and he said so with confidence, that the course of public justice would never be perverted when a case came before a Jury and a Judge of New South Wales. He thought there was too much honour in the Supreme Court of New South Wales, to ever bias a case that might come before the Court … However wicked persons might attempt, by their writings, to sway the course of justice, he would never admit that the moral state of the Colony was so bad as had been represented, and that the course of justice could be perverted by anything that was said out of the doors of the Court.2
Burton’s confidence in the resistance of the court and its jurors to any prejudicial pre-trial publicity in the Press was not shared by the Attorney General. Plunkett was irate that the newspaper proprietors and editors had used their privileged positions in an attempt to manipulate the outcome of the trial.
* * *
The defendants and their counsel were still smarting from the almost unprecedented actions of the Attorney General in forcing them to undergo a second trial. On the reading of the fresh indictment, defence counsel submitted to the court that some of the charges in it were legally barred because they alleged the same offences for which the accused had already been acquitted at the first trial. This is known to lawyers as a claim of ‘autrefois acquit’ – or ‘I have previously been acquitted’. Today this question would be decided by the trial judge before empanelling a jury; however, in 1838 the procedure was for a special jury to be empanelled to decide this issue before the commencement of the trial.
The following day, 27 November 1838, just prior to the commencement of the second trial, the defence argued before Justice Burton and a specially empanelled jury that at the first trial they had been charged with, and acquitted of, the murder of ‘an Aboriginal male to the Attorney General unknown’, and that they could therefore not be put on trial again for the murder of ‘an Aboriginal child to the Attorney General unknown’, because the former offence necessarily included the latter one. The defence argued that an unknown Aboriginal male necessarily included all of the male bodies that had been discovered at Myall Creek. As the child whose rib bone had been found by Denny Day could be male, this retrial impermissibly challenged the acquittal that had been delivered at the last trial. They correctly alleged that the prosecutor was intending to lead exactly the same evidence against them at this trial as he had led in the previous one, thereby demonstrating only too clearly that this was an impermissible rehearing of the same matter.
At one stage, Justice Burton asked the Attorney General this pointed question:
How is it possible that [the Crown] can prove whether one person stated to be unknown is or is not the same as a person set forth a second time also unknown?
Plunkett submitted that the previous trial had been about the murder of the large man, probably Daddy, whose torso had been observed by William Hobbs when he first examined the pile of burnt bodies, whereas this trial was about the murder of a child whose rib bone had been found at the same location by Magistrate Day. He argued convincingly that the two victims were necessarily different people and that the charges did not overlap in any way, making it permissible for the Crown to put the accused on trial again for a completely different murder. The fact that the evidence would be similar or the same at the second trial did not challenge the previous acquittals.
After vigorous legal argument and an explanation of the law by Justice Burton, the special jury retired to deliberate. More than an hour later (which was a long time in those days), after hearing nothing from them, Justice Burton brought them back into court and told them that perhaps they did not understand exactly what they had to consider. He sought to summarise and simplify the issue by explaining:
The prisoners say they have been tried for the crimes alleged against them in this information; it is for you to consider whether they have or not.
The jurors again retired, and returned to court a few minutes later to announce their decision in favour of the Crown. The second trial was ready to proceed in front of a fresh jury. Plunkett had overcome the initial hurdle in putting some of the men on trial again. He was relieved to have won this first round, but realised only too well that the next one would be far harder and, if anything, more controversial. He was well aware of the overwhelming hostility to the prosecution in the general community and much of the Press. Plunkett and his junior, Roger Therry, acknowledged to themselves and each other that their court advocacy would need to be extraordinary to overcome the public sentiment against this prosecution.
* * *
Plunkett’s tactic of putting the seven defendants up for trial again by charging them with the murder of another victim in the same incident would never succeed today, and even in 1838 he was fortunate to have had his way. The first jury had made a decision to acquit, presumably based on the fact that the prosecutor had failed to prove the identity of the victim because of the state of the bodies. A retrial would challenge that finding. If the previous jury could not be satisfied beyond a reasonable doubt that Daddy had been one of the victims of the massacre, how could this jury conclude that Charley was one of them? Surely, such verdicts would be inconsistent. If there was a reasonable possibility that Daddy had just wandered off into the bush and disappeared, didn’t the same possibility also apply to Charley? If the first jury were – however bizarrely – unable to conclude that the eleven accused stockmen had murdered the Aborigines who had been tied up and led away from the huts at Myall Creek Station, then surely the retrial was seeking to canvass that same issue now – in clear breach of the law. While Plunkett’s approach to the second trial would not be successful today, in 1838 it was perfectly acceptable, because of the practice that only one murder could be tried at a time.
Plunkett’s tactics were bold and clever, and he had succeeded in convincing a special jury to allow him to go to trial again. Justice Burton had shown no inclination to stand in his way of asking another jury to come to a different conclusion on essentially the same facts. Plunkett had won a second chance for the Crown.
12
RETRIAL
On 29 November 1838, the second trial commenced before Justice William Westbrooke Burton, who had a different character to the Chief Justice and a more assertive approach towards the right of Aborigines to the protection of British law.1 Several incidents at the commencement of the trial caused John Plunkett to have grave concerns about the integrity of the proceedings. On the morning of the hearing, an unusually large number of men who had been called for jury duty failed to appear. Only twenty-eight of the forty-eight who had received jury notices arrived at court, making it impossible to select a jury of twelve, because of the rights of both parties to challenge jurors. This hurdle demonstrated in a most pointed way the distaste that many people felt for the case, and prompted Plunkett’s ire and disgust, because he was convinced that the Black Association had succeeded in encouraging or intimidating jurors to stay away.2 He requested the judge to severely punish the absent panel members, and Justice Burton issued heavy fines against ten of them.
As a result of the absent jurors, the judge was obliged to direct the Court Sheriff to ‘pray a tales’, which meant pulling a sufficient number of (male) passers-by in the vicinity of the court off the street and into court to make up the numbers on the jury.3 It was in this context that the second incident occurred that morning that caused Plunkett great concern. He was deeply suspicious of Mr William Humphreys, one of the men who had been brought into court off the street by the sheriff, feeling that he may be a stooge or plant, deliberately positioned outside the court by some associate of the accused, with a view to Humphreys being chosen to serve on the jury so that he could then influence the outcome of the trial. When Humphreys’ name was called, the Attorney General ascertained that he had in fact been a
member of the jury at the first trial. On discovering this, and realising that his suspicions were justified, he rather rudely challenged him by calling out, ‘You may walk off’, which earned a rebuke from the judge.
Another incident at the commencement of the second trial confirmed Plunkett’s view that the Black Association was making every effort to subvert the trial process. That morning, shortly before the commencement of the trial, a sheriff’s officer arrested William Hobbs on the pretext of having failed to pay his debts. Undoubtedly, it was an attempt to intimidate Hobbs and remove him on that critical day so that he would be unable to give evidence. Plunkett immediately made arrangements to have him released.
The jury panel sworn to try the case comprised: Mr George Sewell of Sydney, foreman; Mr William Knight, a publican of Castlereagh Street; Mr Francis King, soap boiler, King Street; Mr John Little, publican, King Street; Mr Richard Leeworthy, tailor, George Street; Mr Henry Linden; Mr Benjamin Lee, landholder of Parramatta; Mr Edward Hyland, landholder of Richmond; Mr William Johnson; Mr Alexander Long, publican, York Street; Mr John Leary, publican, York Street; and Mr William Johnstone, a blacksmith of Pitt Town.
Plunkett began his opening address to the jury by seeking to overcome the prejudice that had been engendered by the extensive publicity in the newspapers. It was reported that he told the jurors:
He was aware that considerable feeling and excitement had prevailed in the public mind on the subject; and on his head he might receive blame for not having, at the close of the last trial, obtained an order from the court to prevent the publication of the trial before the matter was finally terminated, as well as the comments that appeared in some of the public prints … The trial appeared fully in the public prints and was commented on generally by every portion of the press according to the different opinions of the case. He did, however, hope that the jury came into the box uninfluenced and unbiased by any feeling but that of a determination to strictly observe the oaths they had taken, and conscientiously to perform that duty which the stern Justice of the country, and the sacred obligation of their oaths, demanded at their hands.
He then sought to explain to the jurors the enormity of the crime that had been committed:
It could not be concealed, as it had already been disclosed in evidence, that 28 human beings had lost their lives in a manner which was sufficient to move the most hardened and obdurate heart; it was not his intention, nor was it his wish, to bias them against the prisoners now put on trial, but it was his duty as well as his custom to bring before them the enormity of the crime, and to paint it in its most debasing colours.
Plunkett then launched his surprise tactic, which caused great discomfort in the defence camp because it was something that the prosecutor had not been able to do in the first trial. According to The Australian, he told the jury that they would have noticed that only seven of the alleged offenders were on trial and four of them were not, and he suggested that:
It would be competent for the prisoners to put those four persons into the [witness] box, to relieve them from the charges of which, having all been in company, they could not be ignorant. If they do not avail themselves of this, it is presumptive proof of their guilt, as they can call those who were present to establish their innocence.4
Not a single objection was voiced to this proposition, either by defence counsel or the judge, thereby indicating that, by the standards of the day, it was quite permissible.
* * *
By these words in his opening address, John Plunkett threw down the gauntlet and challenged the defence to call the other four offenders, or face the inevitable inference that they had not been called because they were all guilty. He was, in effect, requiring the accused men to prove their innocence by calling the other four prisoners. This tactic revealed that his decision to split the defendants into two groups and to present an indictment against only seven of them was a blatant tactical manoeuvre. Plunkett knew perfectly well from the first trial that the defence would not call any of the stockmen to the witness box, because their evidence would implicate them all. So instead he adopted an approach that he thought would appeal to the common sense of the jurors. In his frustration at being denied the opportunity to call some of the men to give evidence against the others, he had contrived a situation where the defence would suffer an inference of guilt from their failure to call them.
Today, John Plunkett’s tactic would be completely unacceptable, because it infringes two of the most basic rights of an accused person: the presumption of innocence and the right to silence. The presumption of innocence entails the proposition that an accused is entitled to be considered innocent unless and until the prosecution has proven guilt during a trial. The onus of proving guilt always falls upon the prosecution; an accused has no burden of proving his or her innocence. The right to silence, as it exists today, dictates that the failure of an accused person to answer questions or to give or call evidence in court cannot be used to infer guilt. It would be quite unacceptable now for a prosecutor to suggest that the defence should call a witness or witnesses to prove their innocence, and if a modern-day prosecutor made a similar suggestion in an opening address, the trial would immediately come to an abrupt end and the prosecutor would be severely rebuked and probably disciplined for professional misconduct. However, in 1838, although both the presumption of innocence and the right to silence had been acknowledged by the English courts, they were not as clearly defined and strictly applied as they are today.5
In 1838, the right to silence varied in its application from place to place, from time to time, and from judge to judge.6 At its highest, it meant that the jury could not use the failure of an accused to provide an account to an investigating magistrate or to make an unsworn statement at trial as a sign that he was guilty. However, there was nothing to stop a defendant calling another person as a witness who could give sworn evidence. The jury was entitled to conclude that the failure of any party – including the accused – to call a witness was because that witness would not have assisted the party who would normally be expected to call that witness.7 This approach was not viewed as infringing the right to silence, so the failure of the defence to call a witness could at that time be used to draw an inference of guilt against the accused.8 That is why the transcript of the second trial does not reveal any objection by Justice Burton or the defence to this part of Plunkett’s opening address.
Plunkett had devised this tactic in response to the dirty tricks of the Black Association: their access to the defendants in gaol to convince them to stand firm as a group; their raising of funds for the defence legal costs; the voluminous amount of adverse publicity against the prosecution in the newspapers; and the attempt to infiltrate the jury at the second trial. John Plunkett knew that he would never get another opportunity like this one to establish that the law valued the sanctity of Indigenous lives to the same extent as non-Indigenous ones. Since the founding of the colony, there had been so many Aborigines massacred, and only one group of perpetrators charged – this one – so Plunkett believed there was an overriding, urgent need to deter future murderers.
* * *
Once again, Plunkett had the problem of proving the identity of the victim. The best he could do at this trial was to call William Hobbs to say that, from the size of the burnt and dismembered heads and bodies, he could say that there had been ten to twelve children killed; and then to call Police Magistrate Captain Edward Denny Day to explain how he had found the rib bone of a child in the same locality. Would the jury accept that the rib bone must necessarily have been from the child known as Charley? Possibly not. Would the jury convict the seven accused men of the death of an ‘Aboriginal child to the Attorney General unknown’, being the child whose rib bone had been located? Plunkett desperately hoped they would.
* * *
Although the evidence called by the Crown in the second trial was substantially the same as at the first trial, in his opening address Attorney General Plunkett identified one p
iece of evidence against Charles Kilmeister that had not been previously led. He told the jury:
There is one circumstance, which has come out since the former trial, which will clearly implicate Kilmeister, and show that he, at any rate, was actuated by malice in the share he took in the matter. It is his having, when spoken to of the motives which could have induced him to commit such a deed, replied that if it was known what the Blacks had threatened to do to him, he would not be blamed.
The actual evidence given on this point at the second trial by Denny Day was as follows:
In the course of the examination [i.e. his questioning of Kilmeister], or rather at the close of the examination, and just as Kilmeister was leaving the room, I said that I was more surprised at Kilmeister than at any of the others, on account of his great intimacy with them [the Wirrayaraay], when he turned round and said, ‘If you knew what they threatened to do to me, you would not be surprised.’ I did not make any further remark at the time. I did not state this on my former examination [at the first trial], but when the Chief Justice was summing up, I recollected the circumstances, and told the Attorney General of it at the time.
* * *
It is quite clear from the evidence given by Magistrate Day at the second trial that Kilmeister had not been referring to a threat from the Aborigines who had been peacefully camped at the station for weeks, but rather from the mounted stockmen who had precipitously arrived at the huts. Not only did Magistrate Day misconstrue what Kilmeister had said, but Plunkett repeated the same mistake. Because Kilmeister did not make a statement at either trial, he was unable to correct this fundamental misunderstanding of why he had joined the stockmen. If properly understood, Kilmeister had been suggesting to Magistrate Day that he had only joined the murderous venture because his own life had been threatened by one or more of the eleven stockmen who had arrived at Myall Creek Station. This was a clear assertion of what is known today as the defence of duress.
Murder at Myall Creek Page 14