Murder at Myall Creek

by Mark Tedeschi

  This procedure is very different to what happens in an appeal today. A modern-day judge would not sit on an appeal from a trial over which he has presided. That only happened in 1838 because of the shortage of judges. Furthermore, an appeal court today would not rely on the trial judge for an explanation of the points of law that had been raised at the trial, but instead would refer to a transcript of the trial and require written submissions from the parties in advance of the appeal hearing. The three judges had no difficulty confirming the correctness of Justice Burton’s decisions of law and, most importantly, determining that the pre-trial, special jury’s decision that had allowed the second trial to proceed was not able to be challenged.

  After the three judges dismissed the appeal, his Honour Mr Justice Burton put on ‘the black cap’14 and delivered lengthy remarks on sentence. He used the opportunity to make observations that he hoped would have a salutary effect on the wider community of New South Wales.

  His Honour said (in part):

  The circumstances of this murder were marked with a singular atrocity, and I am persuaded that the prisoners, long ago, must have anticipated such a result to their trial. It is not a case of the murder of a single individual – it is not a case of death ensuing from violence committed in a drunken quarrel, many of which has been tried this session, when it appears that blood has flowed and intermixed with the damning liquor. This is not a case where any provocation has been given, which might have been pleaded in excuse for the deed. This was not a case where the property or lives of individuals have been attacked, and force has been resorted to, to repel the attack. The murder was not confined to one man, but extended to many, including men, women, children, and babies hanging at their mothers’ breasts, in numbers not less than 30 human souls – slaughtered in cool blood. This massacre was committed upon a poor defenceless tribe of Blacks, dragged away from their fires at which they were seated, resting secure in the protection of one of the prisoners. Unsuspecting harm, they were surrounded by a body of horsemen, 12 or 13 in number, from whom they fled to the hut, which provided the mesh of destruction. In that hut the prisoners, unmoved by the tears, groans, and sighs, bound them with cords – fathers, mothers, and children indiscriminately – and carried them away to a short distance, when the scene of slaughter commenced, and stopped not until all were exterminated, with the exception of one woman. I do not mention these circumstances to add to the agony of that moment, but to portray to those standing around the horrors which attended this merciless proceeding, in order, if possible, to avert similar consequences hereafter. It appears that extraordinary pains have been taken by the prisoners, or by some persons deeply interested in the concealment of their crime, to prevent the murder from coming to light. But, it has pleased Almighty God to conduct a person to that heap of human remains, to be a witness of the scene, before the heap was taken away bit by bit, as it evidently had been, to remove every vestige of the murder. The crime was, however, committed in the sight of God, and the blood of the victims cries for vengeance.

  …

  The crime was conceived, and not suddenly executed whilst imaginative injuries acted on their minds. It was premeditated, and coolly planned, as appeared by their being seen some time before it was perpetrated at a station further down the river preparing straps, and burnishing their swords. They had called the Saturday previous at Newton’s Station, avowedly seeking the Blacks, and on the Sunday evening they came on them, thus closing a hallowed day by the perpetration of murder, thus doubly offending their God by selecting His holy day for the commission of this unheard-of barbarity.

  His Honour then passed sentence of death on all seven prisoners. The following day, the Sydney Gazette noted:

  The judge was deeply affected – to tears. His honour was listened to with the deepest attention by a crowded court, and we trust that the remarks which fell from the bench will have the effect they were intended to produce on the audience – of showing them that the black man, like the white man, has a soul to be saved, and that any outrage on the former by the latter will be as soon avenged as would be an outrage on the white man by the black savage.

  * * *

  The public reaction to the sentences was vociferously hostile, and particular venom was directed at the chief prosecutor, John Hubert Plunkett. An editorial in the Sydney Herald sought to demonstrate that the law had been applied unfairly because numerous whites had been killed by blacks without any consequences:

  The men found guilty of the alleged murder of certain aboriginal natives have received sentences of death. Will the Executive government cause that sentence to be carried into execution? This, whatever may be urged on the other side, is a most important question at the present juncture. A contemporary of Thursday last announces his intention to go, at an early day, into a full discussion of what he terms ‘the whole aboriginal question’. It needs no discussion: it may be summed up in a few brief sentences: ‘Are we to have equal laws? Are the white settlers and their servants, to be protected against the outrages of the blacks? Are blacks to be hanged for murder as well as whites? And if so, what steps have been taken to apprehend and hang the scores of black murderers who have shed the blood of white British subjects?’ 15

  The Sydney Herald listed the murders of whites by Aborigines in the Liverpool Plains District that had occurred in recent times without anyone being charged, and then commented on the death sentences passed on the seven whites:

  The men may be guilty – they may be innocent; but take which view of the case we may, the principle for which we contend is in no way altered. The law is unequal, and while it is so – while the murder of so many whites has been unavenged, it is nothing short of legal murder to take the lives of white men for the alleged slaying of blacks. Upon the heads of the various governments of this Colony all this shedding of blood will fall. No attempt has been made, by means of a properly organised force on the frontiers of the Colony, to keep the blacks in subjection, by means, simply, of intimidation; and thereby protect the white settlers and their servants.

  The twelve jurors who were responsible for the convictions faced hostility from the community and even from their families. George Sewell was told that he was ‘a bloody rogue for finding the prisoners guilty’ and that William Knight, the juror who had alerted Justice Burton to the incorrect verdicts, ‘ought to have had his brains knocked out’ for standing up in Court.16

  Three petitions calling for mercy were submitted to the Governor and the Executive Council, which had the power to remit the sentences. The first petition was from eleven of the jurors who had served at the first trial, and the second came from ten of the jurors at the second trial. The latter, who had been responsible for the convictions, expressed the view that ‘the ends of justice have been satisfied by the prisoners’ condemnation and long imprisonment’. A third petition had been signed by about 450 residents of Sydney, Parramatta and Windsor. Membership of the Executive Council included the Anglican Bishop of Australia, William Broughton, and the Chief Justice, James Dowling, who had presided over the first trial. The Council met on 14 December and rejected the petitions.

  There was so much agitation on behalf of the condemned men that the Governor thought there might be civil unrest on the day of the executions, and so he made special arrangements with Mr Henry Keck, the gaolkeeper at the Sydney Gaol in George Street, in case there was a need to ‘repress any violence, should any be attempted on behalf of the condemned men by the mob, which was not deemed improbable, on account of the degree of excitement which the case had occasioned in the public mind’.17 Right up until the morning of the executions, there was public conjecture that the condemned men would receive a reprieve from the Governor – but none was forthcoming.

  On the day of the executions, Tuesday, 18 December 1838, shortly before 9am, a guard of eighteen men of the 59th regiment under the command of Lieutenant Sheaffe arrived at the gaol and immediately afterwards the Sheriff, Thomas Macquoid, appeared. The seven condemned m
en – Charles Kilmeister, John Russell, Edward Foley, James Oates, John Johnstone, William Hawkins and James Parry – who ranged in age from twenty-three to thirty-five, had already spent time with their religious advisers, who comforted them and received their confessions. The Protestants were attended by Reverend Mr Cowper and Mr Hyndes and the Catholics by Reverend F Murphy. When the clock struck nine, the procession began to move towards the scaffold. It was reported that:

  Russell was much agitated, and he was obliged to cling to the Priest’s coat for support … Foley, who was the youngest of the culprits, requested [the Sheriff] Mr Thomas Macquoid for permission to embrace his companions, and the request being complied with, they kissed and shook each other’s hands and with eyes streaming with tears, bade each other a last adieu. They shook hands with Mr Keck and embraced Mr Hibbs, the turnkey, and then knelt down and proceeded with their devotions, at the close of which they mounted the scaffold, attended by the clergymen who continued to exhort them while the final preparations were being completed. These done, the Rev Gentlemen and the executioners descended from the scaffold, and in the short interval that followed previously to the falling of the drop, the cries of the men to God for mercy were distinctly audible, and they were soon launched into eternity.18

  One of the many witnesses to the hangings was a Mr JH Bannatyne, who was so shocked by the experience that, on returning home, he immediately wrote a note to a friend saying:

  I have just returned from seeing the seven men all launched into eternity at the same moment. It was an awful sight and has made me feel quite sick – I shall never forget it.19

  It was later reported to the gaolkeeper, Mr Keck, and through him to Governor Gipps, that all seven men had confessed their guilt to their respective religious advisers.20 Their confessions, however, were qualified by a disturbing, but no doubt truthful, explanation. Mr Keck informed the Sheriff that:

  Frequently, during their confinement here, they each and all, at different times, acknowledged to me their guilt, but implied that it was done solely in defence of their Masters’ property, that they were not aware that in destroying the Aborigines they were violating the law, as it had, according to their belief, been so frequently done in the Colony before.21

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  CONSEQUENCES

  The press and public reactions to the hangings of the seven stockmen for the murders at Myall Creek were in the main overtly hostile to the prosecutor, John Hubert Plunkett, who was looked upon as the perpetrator of a crime worse than what had occurred at Myall Creek.1 The Sydney Herald accused him of placing the prisoners ‘twice in jeopardy on the same charge’, and called on him to resign. Sir George Gipps was petitioned to remove Plunkett from office in order to avoid any further ‘miscarriage of justice’; however, the Governor stood by his Attorney. The most common view about the case among whites of every class and status was that no white person should ever hang for the murder of a black. Plunkett was the object of hatred from many, diverse sections of the community, but none more so than the squatters beyond the limits of location. This antipathy endured for years.

  For many months after the second Myall Creek murder trial, the fate of the four remaining prisoners – James Lamb, John Blake, George Palliser and Charles Toulouse – hung in the balance. In late December 1838, following the execution of the seven from the second trial, Plunkett applied to have the trial of the remaining four postponed until the next sitting of the Court in early 1839. The basis of his application was an affidavit from William Hobbs that stated that an Aboriginal boy named Davy, who was now nineteen, had told him that he had stood behind a tree and witnessed the murders of the Aboriginal men, women and children. The affidavit further stated that Davy could speak English and, in the opinion of Hobbs, might be ‘sufficiently instructed so as to become a competent witness’.

  The problem was that Davy, as an Aborigine, was legally disentitled to give evidence unless and until he had been given some ‘instruction in the ordinances of religion’ so as to be able to take an oath on the Christian Bible. This entailed a basic education in a belief system of rewards and punishments in the afterlife and the dire spiritual consequences of lying under oath. It was submitted to the court by the Attorney General that, if the trial was adjourned, there would be sufficient time for the instruction of Davy to take place. The application for an adjournment was granted.

  The Sydney Herald predictably criticised Plunkett for his intention to put Davy in the witness box:

  Will a young savage, who must be instructed as a parrot would be instructed, be admitted to give evidence in a case of life and death? Does any rational man suppose that such evidence be anything but one-sided? … We trust that should any such witness be pushed into the witness box, that the Counsel for the defence will probe his competency to the quick, and not permit the possibility of four men’s lives being frittered away upon the statements of a young black savage, possessing no more idea of ultimate responsibility than a baboon.2

  Two months later, on 14 February 1839, the four remaining prisoners appeared before Chief Justice Dowling. Plunkett informed the Court that Davy was an essential witness for the Crown, and although two months had elapsed Davy had not yet been instructed in the nature of an oath. Upon the Chief Justice enquiring whether there was any chance of Davy being sufficiently instructed, Plunkett admitted that he knew of no instance in which an Aboriginal person had been sufficiently instructed to the point of being able to appear as a witness in a trial. He acknowledged that there was insufficient evidence against John Blake and that he should immediately be freed. So far as the other three prisoners were concerned, Plunkett had no objection to them being granted bail pending a further adjournment to allow Davy to be instructed. Chief Justice Dowling freed Blake and, realising that it was unlikely that the other three would ever face trial, released them on bail and added this salutary addendum:

  If you are not brought to justice, there is still that small voice which will without fail admonish you. If your conscience does accuse you, I hope you will repent and atone to God for any part that you might have taken in the bloody affray with which you have been charged.

  * * *

  The reality behind the failure to ‘instruct’ Davy was that the young Aboriginal man had disappeared without trace and was never to be seen again. Missionary to the Aborigines, Lancelot Threlkeld, was of the view that Henry Dangar had arranged for Davy ‘to be put out of the way’.3 In all likelihood, Davy was murdered by one of Dangar’s henchmen. Plunkett felt a terrible sense of guilt that, having informed the Court that he would rely on Davy as a witness and having admitted that he had no case without him, he had effectively signed the man’s death warrant.

  Plunkett faced a severe dilemma. Without Davy as a witness to the murders, he would have the same challenge as before to prove the identity of another victim. The public mood was firmly against any further prosecutions. Governor Gipps had been affected by the public hostility to the convictions and executions and had lost enthusiasm for a further trial. Plunkett acknowledged to himself that if he went to trial again, the defendants would undoubtedly raise the issue of their prior acquittals, and another special jury might find that the four remaining prisoners were entitled to rely upon the earlier verdict. Even if he won the right to put them on trial again, he would likely face a hostile jury reluctant to convict in light of the seven earlier executions. Having won the second trial, the last thing he wanted was a contradictory verdict of acquittal at a third trial that would challenge the correctness of the earlier convictions. Plunkett felt that he had adequately made his point that Aboriginal lives were as valuable as white ones, and he did not want to run the risk of diminishing that message by failing to get convictions on the same evidence at a third trial.

  Plunkett was recorded as saying that he could not ‘risk public justice’. From this remark, it is apparent that he acknowledged, if only to himself, that the convictions in the second trial were fortuitous and unlikely to be repeated. If a trial o
f the remaining four stockmen were held, he could hardly rely on the same tactic of suggesting an unfavourable inference from the failure to call the other perpetrators, who had been put to death. Did he acknowledge, if only to himself, that in the second trial he had placed the seven stockmen in double jeopardy? Did he perceive that he had ignored the presumption of innocence and reversed the onus of proof? Whatever his thoughts, Plunkett’s balancing of the benefits and detriments of a third trial were heavily weighted against it.

  * * *

  As a result of the community backlash to the executions, the Governor lost much of his political will to continue any other prosecutions of a similar nature. By mid-1839, Gipps and the Executive Council had decided not to press any charges against Major Nunn for the Waterloo Creek massacre in January 1838. Governor Gipps did, however, establish a special force of ‘Border Police’, which had as its stated purpose putting an end to the atrocities being committed by both races in the squatting districts. The Border Police, in fact, focussed mainly on protecting white settlers and their stock, and were responsible for their own massacres of Aborigines in the years to come.4 In May 1839, Gipps finally issued an edict enforcing his instructions from London of the previous year:

  As human beings partaking of our common nature – as the Aboriginal possessors of the soil from which the wealth of this country has been principally derived – and as the subjects of the Queen, whose authority extends over every part of New Holland – the natives of this Colony have an equal right with the people of European origin to the protection and assurance of the Law of England.5