Murder at Myall Creek

by Mark Tedeschi

  The defence of duress is available if an accused can show that he has committed an offence because of a threat that death or serious violence would be inflicted on him if he refused to commit it. The threat must be so serious and so proximate to the offence that a reasonable person in the position of the accused would have yielded to it.9 Duress was, and is, unavailable as a defence to murder by a person who has been directly involved in the actual killing (a principal in the first degree), but it was, and is, available as a defence to a person who was ‘aiding and abetting’ in the vicinity of the murder.10 Plunkett was not in any position to prove that Kilmeister had been directly involved in the killings, as he had no eyewitness that he could call, so any evidence of duress would have been highly relevant to Kilmeister’s case at the trial.

  If Kilmeister had raised the defence of duress during an unsworn statement to the jury, setting out the threat to his life that had been made by Russell inside the hut, he may well have been acquitted. Evidence of the threat, supported by the overwhelmingly intimidating arrival of the eleven stockmen at the huts before the murders, could have influenced the jurors to accept that he was under an intolerable risk to his own life that any person would have succumbed to, and therefore that he was entitled to raise the defence of duress. Alternatively, the jurors may have had compassion for him, in which case they may have acquitted him out of sheer sympathy. His situation was clearly different to the other defendants who had ridden for days in search of the Wirrayaraay before arriving at Myall Creek Station. On the other hand, Kilmeister’s actions in maintaining the fire to burn the bodies for several days after the murders demonstrated a form of assistance called ‘accessory after the fact’, and there was no evidence of an imminent threat to his life at that point. In addition, it could be said that Kilmeister’s continuing involvement with the other stockmen when they later went in search of the young Wirrayaraay men after the murders at Myall Creek Station would have gone against him, and possibly convinced the jury that fear for his own life had not been his only motivation.

  Because of the misinterpretation of Day’s evidence and the fact that Kilmeister did not say anything at his trial, he was deprived of the real opportunity of an acquittal. Instead, his confession to Denny Day was misused as evidence of some hostility towards the Wirrayaraay and a motive to kill them. It is incomprehensible that his barristers did not confront Denny Day in cross-examination during the prosecution case and put to him that he had misunderstood what Kilmeister had said. One can only think that the defence counsel did not want to treat differently any of the seven defendants they were representing in court, because they were expecting a sympathetic jury to acquit all the accused, as had happened at the first trial.

  * * *

  Plunkett called the same witnesses at the second trial to give virtually identical evidence they had given at the first trial. After the prosecution case had finished, all seven accused once again declined to say anything in their defence. Needless to say, not a single one of the remaining four prisoners was called in the defence case. Once again, various character witnesses were called. Henry Dangar again gave evidence on behalf of Charles Kilmeister, singing his praises and denouncing George Anderson as being of general bad character and addicted to telling lies. This time, however, Plunkett launched a withering cross-examination of Dangar that challenged his honesty and attempted to put before the jury evidence of his overwhelming bias in favour of the prisoners.

  Dangar admitted that he had not gone to Myall Creek Station until after Magistrate Day had been there, despite receiving a letter from William Hobbs about three or four weeks after the murders. He attempted to explain that he had not believed that twenty-eight Aborigines had really been murdered. Plunkett cross-examined Dangar about the fact that he had been dismissed as a government surveyor some years earlier. In response, Dangar insisted that he had merely been suspended, rather than dismissed. At one point, Dangar became so exasperated by the penetrating questions from the prosecutor that he asked Justice Burton whether he had to answer the question, to which Burton replied that he was bound to respond. The questioning went like this.11

  Plunkett: Were you not dismissed from your situation?

  Dangar: I was suspended.

  Plunkett: Were you not dismissed. I say, sir? You know what I mean.

  Dangar: I was suspended.

  Plunkett: Answer me without equivocation, sir! Were you not dismissed, and not suspended, as you want us to believe?

  Mr Dangar addressed the Court, wanting to know whether he was bound to answer that question.

  Mr Justice Burton replied that he was bound to answer the question.

  Dangar: I was a surveyor; I did not ask to be reinstated; perhaps the Secretary of State might have given orders that I was not to be reinstated; perhaps I received a public intimation; it is ten or twelve years ago, and I don’t recollect the contents of a letter of so remote a date; I was suspended.

  Justice Burton: Mr Dangar, if you were not dismissed, you can have no hesitation in stating so without equivocation.

  Dangar: A suspension was tantamount to a dismissal. The Governor ordered my suspension, and perhaps the Secretary of State might have ordered that I was not to be reinstated.

  Plunkett also cross-examined Dangar on the fact that he had dismissed William Hobbs after receiving his letter about the massacre, to which Dangar again replied in an equivocal manner, which prompted another response from the judge:

  Plunkett: Did you dismiss Mr Hobbs from your employment?

  Dangar: Mr Hobbs is not to remain in my service; his time is expired.

  Justice Burton: When an answer is given to a question, it is to be fully given without reservation. Was that the only reason of his leaving your service?

  Dangar: No, your Honour, and I was going to add, he has not given me satisfaction in the case of my property; that is the only cause.

  Plunkett: Was that the only reason?

  Dangar: That is the only cause.

  Plunkett: Did you ever express any dissatisfaction at Mr Hobbs’s conduct in this case?

  Dangar: No. I expressed my dissatisfaction at his keeping me in town the other day.

  Plunkett: Did you ever tell him or anyone else that you were dissatisfied at his bringing this case forward?

  Dangar: No. If this case had not happened I would still have discharged him. I had an intention six months ago of putting an end to his [work] agreement.

  Plunkett: Did you tell him that?

  Dangar: I did not state so to him.

  Plunkett: How long had he been with you?

  Dangar: He had been with me two years.

  Plunkett: When did his term with you expire?

  Dangar: I believe his term expired in October, and I gave him notice in October.

  Plunkett: When did you make up your mind to discharge him?

  Dangar: I made up my mind six months ago.

  Plunkett: Did you tell anyone?

  Dangar: I communicated that determination to my own family, but not to him.

  Plunkett: When you were going up to your station the last time, [on the way] did you state to Mr Day that you were well pleased with Mr Hobbs?

  Dangar: Yes.

  Plunkett: When was that?

  Dangar: That was in September.

  Plunkett: How long was that before you gave him notice that you would terminate his agreement?

  Dangar: It was a month before I gave him notice.

  Plunkett: Did you tell Mr Day that Hobbs was a man of truth?

  Dangar: No, I did not. I said that Mr Hobbs was a respectable young man.

  Plunkett: What else did you say to Mr Day?

  Dangar: That I was very glad that Mr Day had found my station so regular.

  Plunkett: Why didn’t you give Mr Hobbs notice of termination of his employment?

  Dangar: When Mr Hobbs agreed for [employment for] a year, it was not imperative on me to give him notice. If he had asked me, I should have told him.

&
nbsp; Plunkett: Didn’t you renew his contract for a second year?

  Dangar: I did not come in contact with him in the second year as I did in the first, when I renewed his agreement.

  Plunkett then questioned Dangar about the fact that William Hobbs had been arrested on a pretext that very morning for failure to pay his debts:

  Plunkett: Were you about the court this morning?

  Dangar: Yes.

  Plunkett: Did you know that Mr Hobbs was arrested at the court this morning?

  Dangar: Some person told me he was arrested, but I did not know that he was to be arrested.

  Plunkett then questioned him about the shortage of jurors that morning and the attempt to plant a defence supporter among them:

  Plunkett: Did you know that there was a scarcity of jurors this morning?

  Dangar: No.

  Plunkett: Did you speak to anyone this morning who came for jury service?

  Dangar: I swear I did not speak to anyone.

  Plunkett: Did you advise anyone to come to court to get on the jury?

  Dangar: No.

  Plunkett: Did you suggest to anyone that he might sit on the jury?

  Dangar: No, I did not ask anyone why he did not sit on the jury and I did not say to anyone, ‘Why did you not sit on the jury and why did you refuse?’

  Plunkett next questioned Dangar about his financial support for the defendants:

  Plunkett: Have you defrayed any of the expenses of the defendants?

  Dangar: No, I have not. I subscribed £5 in the month of July or August to defend my servant, who is a faithful one.

  Plunkett: Why did you subscribe money to defend your servant?

  Dangar: It was simply because Kilmeister was my servant that I subscribed.

  Plunkett: Would you have subscribed if he had not been your servant?

  Dangar: I won’t swear that I would not have subscribed if he had not been my servant.

  Plunkett: When you subscribed, had you heard the particulars of this matter?

  Dangar: No, I had not.

  These lines of cross-examination were so effective at destroying Dangar’s credibility that the jury would not have given the slightest weight to his evidence supporting Kilmeister or denigrating Anderson. It was quite clear from the judge’s interjections that he was singularly unimpressed with Dangar’s evidence.

  After Dangar had finished, and other witnesses had given character evidence for the other prisoners, William Hobbs was recalled in reply by the prosecutor12 to say that Anderson had been under his immediate control at all times that he had been at the Big River, and that from his general character he would believe Anderson on his oath. He concluded by saying that Anderson was as good a servant as he had ever met.

  * * *

  John Plunkett was extremely bold in taking on Henry Dangar in the way that he did. Dangar was one of the richest and most powerful men in the colony. He had an extensive network of friends and supporters, and the consequences of challenging him in the way that Plunkett did must have been obvious. Plunkett did not hesitate to do so on this occasion, believing that it was essential in the conduct of the trial to demonstrate to the jury how unreliable Dangar’s evidence was in supporting Kilmeister’s character and detracting from Anderson’s. Plunkett’s fearlessness in his cross-examination of Dangar was in the best traditions of the Bars of England and Ireland.

  At the conclusion of the evidence at 11pm, Justice Burton refused to adjourn the trial until the following day and insisted on commencing his summing up to the jury.

  * * *

  Trial procedure in 1838 was quite different to what it is today. At a modern-day trial, at the conclusion of all the evidence, counsel for both sides have the opportunity to make submissions to the jury during closing addresses in which they can suggest how the jury should view the evidence and why a verdict should be reached in their favour. The persuasive power of closing addresses cannot be overstated. However, it was not until October 1840 – nearly two years after the Myall Creek murder trials – that counsel in New South Wales were permitted to address juries at the conclusion of the evidence, despite the fact that it had been permitted in England since 1836.13 Juries in New South Wales at this time therefore relied very heavily on the judge’s summation of the evidence.

  * * *

  The tone of Justice Burton’s summing up was different to the Chief Justice’s at the first trial. He began by suggesting to the jury that they might have the same view as him, which was that ‘there was no doubt but a great crime had been committed by someone’. He warned them:

  Opinions had been formed, and inferences drawn from what had appeared in print, but the jury were, in the solemn situation in which they were then placed, between God, their country, and the prisoners, separated from the community; and they, as well as himself, were bound to hold themselves responsible to God and their country, and not to public opinion.

  He reminded them that the Aborigines were ‘equally under the protection of God and the law’, and that as jurors they were obliged to maintain ‘a rigid regard to the laws of God, and the laws of the country’. He cautioned them:

  He knew how pleasant it was to have the goodwill of friends, and of the public, but in the conscientious discharge of the duty now imposed on them by the solemn oath they had taken to administer justice, they must discard all private feeling, and guard against the semblance of being biased by any consideration.

  So far as the facts were concerned, Justice Burton impressed upon the jury the enormity of the crime that had been committed:

  The circumstances of the case presented a fearful barbarity which perhaps had rarely been equalled. Several persons had been tied together and shot, and cut and burned, in the most barbarous manner.

  He stressed how important it was that everyone was entitled to the protection of the law:

  I hope I need not impress on your mind that it matters not in the sight of God or of the law whether that creature has a white or black skin. They are equally liable to the protection of the law.

  He reminded them that the Wirrayaraay had done nothing to warrant the attack on them, and hinted not too subtly that proprietary interests had been at stake:

  I cannot help noticing (and I have waded through the evidence to find it, if possible) that in this case there had not been the shadow of provocation given by the unfortunate Blacks. If the pecuniary interests of gentlemen [i.e. landowners] require that their servants should go armed, it ought to be impressed upon them that nothing but extreme necessity will warrant their using those arms against their fellow creatures. If the community should ever become so depraved that lives of human creatures are of so little value, and that the Blacks might be indiscriminately killed wherever they are seen, then it would be no wonder that the Colony should be visited by the displeasure and heavy visitations of God. If outrages had been committed by other Blacks down the [Big] river, this tribe has been represented as peaceable. They were in constant contact with the whites and they were peaceably encamped for the night when they were led away to slaughter.

  Burton clearly insinuated his own view that Anderson was entirely believable and that Dangar had shown himself to be utterly unreliable:

  With respect to the evidence of the man Anderson, it has been impeached strongly by Mr Dangar, who from some frivolous cause has stated that he would not believe him on his oath. But if it were allowed that men charged with some trifling disobedience of orders or neglect were to be incapacitated from giving evidence, I am fearful that many crimes, and murders amongst the number, would go unpunished. However, you have heard Mr Hobbs’s character of Anderson, and you have also heard Mr Dangar’s reason for impeaching the credit of Anderson. You have heard circumstances relative to the misappropriation of land, and you have seen the manner in which Mr Dangar has conducted himself in the box. It is for you to judge whether Anderson’s testimony has been impeached or whether Mr Dangar’s testimony has not rather been impeached by himself. In any event, Mr Dangar h
as shown the bias of his mind. He has shown that his opinion had already been formed and that he came before the court prejudiced.

  The judge’s summing up concluded at 1am on 30 November. Perhaps in an attempt to encourage the jury to come to a quick decision, Justice Burton insisted on sending them out to consider their verdicts at that hour of the night. They returned to court at 2am and were asked for their verdicts. The extraordinary events that followed were probably a result of the jurors’ tiredness after a full, tension-filled day and most of the night in court. The foreman, George Sewell, stood and, in response to the first group of charges – those relating to the murder of an unknown Aboriginal child – he announced verdicts of not guilty. The seven defendants heaved a sigh of relief and their counsel looked knowingly at each other and at their clients; this was what they had predicted. Their trial tactics had once again been vindicated. Because these were the charges on which the jury was most likely to convict, Plunkett was gutted by the fresh set of acquittals. However, within a few seconds of these verdicts being announced by the foreman, one of the other jurors, William Knight, jumped up and informed the judge that the foreman had delivered the wrong verdicts and that the correct verdict on each of those charges was guilty. After a suitable enquiry of the foreman to confirm that a mistake had in fact been made, the judge entered verdicts of guilty. The seven prisoners, who had precipitously lurched from anticipating their freedom to facing their execution, looked pleadingly and in confusion at their representatives at the Bar table, hoping that their counsel could somehow retrieve the previous situation and rescue them from this unexpected nightmare. Plunkett felt an enormous sense of relief, but also a feeling of fragility at how close this jury had come to delivering yet another miscarriage of justice from the point of view of the murdered Aborigines.

  The sentencing of the seven convicted prisoners was delayed until after the appeal five days later in front of three Supreme Court judges, who reviewed the decisions of law that had been made before and during the second trial. On 5 December 1838, Chief Justice Dowling and Justices Burton and Willis heard argument from counsel, after Mr Justice Burton assured the court that he had fully explained to his brother judges the nature of the points of law that had been decided during the trial.