Murder at Myall Creek

by Mark Tedeschi

  The Australian Aborigines’ Protection Society, which had been established in October 1838 following the arrests of the eleven stockmen, lost momentum and quickly disappeared.6

  * * *

  It should be noted that the Myall Creek massacre was one of a large number of mass murders of indigenous people committed in the early decades of the colony. The only reason so much is known about this particular incident is because it was one of the very few cases in which any of the perpetrators were brought to justice, and hence it was extensively documented. Numerous other mass murders were committed with complete impunity and were even sanctioned by the authorities.7

  The struggle for scarce resources between the immigrant and the indigenous populations in colonial New South Wales resulted in so many indigenous deaths on so many occasions and at so many locations over more than a century8 that one can only come to the depressing conclusion that racial conflict is endemic to the human species. The differences in force of arms between the two populations resulted in many more deaths on the indigenous side, so that whole tribes, like the Wirrayaraay, were decimated and some even exterminated throughout the Australian colonies. Similar outcomes for indigenous communities have occurred in many parts of the world and in many ages. The prosecution of the eleven men responsible for the Myall Creek massacre was not only a rare event in the Australian colonies, but indeed in the history of European colonialism.

  Following the two trials of the perpetrators of the Myall Creek murders, despite the admonitions of Justice Burton, the murders of Indigenous people continued unabated, and extended well into the twentieth century. However, the preferred method of extermination changed and greater care was taken to prevent atrocities coming to the attention of the authorities. The two trials in 1838 pushed the murders of Aborigines underground, so that instead of roaming gangs killing Aborigines by acts of violence, malevolent landowners and their agents preferred to leave poisoned food for them or to contaminate their waterholes. Mass murders by violence did still occur, but greater care was taken to dispose of bodies and remove all evidence. Some of these atrocities were committed by the Border Police, which had been established to protect the Indigenous population. Those responsible for the murders of Aborigines no longer bragged openly about their exploits, and instead only whispered about them to co-offenders and trusted associates.

  14

  LEAVE, LONDON AND THE END OF TRANSPORTATION

  Within two days of the execution of the Myall Creek defendants in December 1838, John Plunkett sought the Governor’s permission to go on leave so as to return to Ireland. He was weary from the ordeal of the trials and worn down by the constant criticism in the press and the public arena. He was also tired from the relentless duties of office that he had performed since his arrival in the colony six years earlier. He had in mind that on arriving in London he would explore a number of options, which included: a government posting in his native Ireland or even in England; a posting to another colony; or a return to New South Wales. Maria Plunkett was adamant that her preferred option was to return home permanently.

  It was more than two years before Governor Gipps was able to release John Plunkett to return home. The main difficulty was the impossibility of finding someone suitably qualified to take over Plunkett’s dual role as Attorney General and Solicitor General on the salary of only one position. In fact, the Governor was unable even to find someone willing to do both jobs on a double salary. Governor Gipps’ preferred candidate for acting Attorney General was Roger Therry, who was willing to take over the position if someone else was offered the post of acting Solicitor General. However, London was unwilling to pay both salaries. The deadlock prevented John and Maria from leaving Sydney for a lengthy time.

  * * *

  While waiting for the Governor to resolve these difficulties, John Plunkett was still smarting from the injustice of having been unable to call Davy, the only eyewitness to the murders at Myall Creek, and he resolved to provide a remedy for the inability of Aboriginal inhabitants to give evidence in the courts. Ideally, he would have preferred a Bill to allow Aborigines to give unsworn evidence in all cases, but, recognising the difficulty of winning acceptance in the Legislative Council for any such measure, Plunkett settled on a more modest proposal for Aboriginal men and women to be permitted to give evidence in court where their testimony could be corroborated by the sworn evidence of non-indigenous witnesses. The Aboriginal Evidence Bill was passed by a majority in the Legislative Council on 8 October 1839. However, Chief Justice Dowling advised the Governor that the measure was contrary to the rules of evidence in England, and therefore liable to be rejected by London under the doctrine of repugnancy. So, the Bill was remitted by the Governor to the English Attorney General, with this explanation:

  The measure was introduced at the desire of the Attorney General, in consequence of the difficulty in obtaining convictions which he experienced in several cases, wherein native blacks have been concerned, either as the accused or the injured party, and the dissatisfaction which has been expressed in the colony when a criminal has escaped.1

  The English Attorney General obtained the opinion of two eminent English barristers, who advised that the proposed provision was ‘contrary to the principles of British jurisprudence’. Their rationale was this:

  To admit in a criminal case the evidence of a witness acknowledged to be ignorant of the existence of a God or a future state would be contrary to the principles of British jurisprudence; and the Act is loosely worded with respect to the admission of such evidence and the weight to be given to it that we do not think it could be attended with any advantage.2

  The disallowance of the Aboriginal Evidence Bill was conveyed in a dispatch dated 11 August 1840 from Lord John Russell in London to Governor Gipps in Sydney. The result was that Aborigines remained excluded as witnesses in the colonial courts of New South Wales. Governor Gipps received the disallowance of the legislation most unfavourably because it allowed whites to continue perpetrating crimes against Aborigines with impunity.3 It also resulted in many Aboriginal defendants being unjustifiably acquitted because it was acknowledged that they were unable to provide a defence to a charge.

  The ineligibility of Aborigines to give evidence was one of the reasons why white colonials were able to continue their murderous activities against the Indigenous population. In 1842, George Augustus Robinson, the Chief Protector of Aborigines, wrote to Governor Gipps:

  At present the evidence of Aboriginal natives, by reason of their ignorance of the knowledge of God, is inadmissible in our courts of law; and hence, properly qualified religious instructors, to impart to them the truths of Christianity, and prepare them for the reception of their legal rights, as proposed by the Right honourable the Secretary of State, is, in consequence, absolutely needed. It were much to be regretted that the Colonial Act of Council on Aboriginal evidence was disallowed, for it frequently happens that for want of this evidence the highest and foulest crimes go unpunished.4

  The following year Robinson again pointed out that:

  There is … reason to fear that the destruction of the Aboriginal natives has been accelerated from the known fact of their being incapacitated to give evidence in our courts of law. I have frequently had to deplore, when applied to by the Aborigines for justice in cases of aggression committed on them by white men, or by those of their own race, my inability to do so in consequence of their legal incapacity to give evidence.5

  * * *

  Prior to his departure for England, Plunkett was once again involved in a case in which an Aboriginal inhabitant was denied justice because of his ineligibility to give evidence. The case involved an Aboriginal man known as ‘Neville’s Billy’, who in November 1840 was charged with the murder of John Dillon at Ullabalong near Yass by spearing him.6 There was a real question as to the identity of the murderer, as there had been a group of Aborigines in the vicinity at the time of the spearing. Plunkett opened the Crown case by explaining:

 
There were no cases of a more painful description than those against the Aborigines, who, from their ignorance of our language, manners and customs, as well as of our laws, could only take their trial at a disadvantage, as the state of the law prevented them from calling on others of their tribe to give evidence in their defence.

  The only real evidence against Billy was a verbal dying declaration made by the deceased, John Dillon, to William Jackson, an illiterate border policeman, a short time before Dillon died of his injuries. Being illiterate, Jackson had been unable to write down the dying declaration and was therefore forced to give evidence of it from memory at the trial eight months later:

  ‘The prisoner speared him through the window of the hut under the arm-pit of the left arm, and then the person who speared him looked in through the window and said, “ah, ah!” I believe he said it was Neville’s Billy who speared him.’

  Jackson also testified to a conversation in pidgin English with Neville’s Billy when he arrested him several months after the murder:

  ‘I said to prisoner, “what for you tumble down [kill] Waddy Monday?” (the black name given the deceased from his having a wooden leg) when he said that Billy, Paddy, Puckamulloi, Woagli, and Pialla [all other members of the accused’s tribe] told him to kill the deceased.’

  On the defence side, Billy’s Aboriginal companions, who presumably had witnessed the events in question, were unable to be called because of their inability to take the oath. The trial judge, Chief Justice Dowling, gave this grave warning to the jurors during a summing up which was clearly aimed at securing an acquittal:

  ‘They were a jury of intelligent, British subjects, called on to administer justice to a savage, who was ignorant of the language, laws, and customs of civilized life; and [he] called on them to mark the situation in which the prisoner and the judges were placed in such trials. By a fiction of law he was amenable to British law. He was accused of the murder of a British subject, a white man, one of a race of men who had seized on his native land. He was by fiction of law, a British subject, and as such was entitled to be tried by his peers, his equals. Were the jury his equals? Did they know his language, his habits, or his customs? He took his trial under many disadvantages, so much so, that he was not in a situation to conduct his own defence – he could not even instruct his counsel. He might have witnesses, but they, by a legal technicality, not being Christians, would not be admitted to give evidence, and therefore it was that he said the prisoner took his trial under great disadvantages. It was in fact a one-sided trial, and therefore, he called upon the jurors, as Britons and Christians, to lay aside all prejudices, and give every attention to the evidence, which was not of that kind usually brought to support such cases.’

  Despite these severe admonitions, the jury convicted Billy of murder. The Chief Justice had no option under the law but to sentence him to death. John Plunkett, aghast at the injustice of the trial, pleaded for mercy, and Billy’s death sentence was commuted by the Executive Council.7

  The case reinforced the need to urgently reform the law to allow Aborigines to give unsworn evidence in the courts.

  * * *

  While Governor Gipps was waiting to find a temporary replacement for his Attorney General, the British government finally ended convict transportation to New South Wales. In both Britain and Australia during the 1830s, it had increasingly been acknowledged that transportation had an evil side that could only be avoided by abolition. The anti-slavery movement had achieved success by the passing of the Slavery Abolition Act, which progressively unwound slavery in the British Empire between 1833 and 1840. As slavery disappeared, those who had worked for its abolition focused their attentions on ending transportation. It had been mooted in the colony for more than a decade, with those who had benefitted the most from free labour predictably being the most vocal against abolition. With increasing numbers of free migrants, colonial society was anxious to be free of the hated ‘convict stain’. Predictably, the major newspapers took opposing sides in a vigorous debate on the topic. Surprisingly, considering his liberal views on other issues, but also unsurprisingly, considering his extensive land holdings, one of the most vocal supporters of transportation was WC Wentworth. One of the greatest opponents of transportation was John Fairfax, who in 1841 became the proprietor of the Sydney Herald. John Plunkett was firmly in the camp of the abolitionists.

  In New South Wales, it was predominantly the urban workers, both free men and emancipists, who opposed transportation, claiming that there was now a sufficiently large body of non-convict labour to service the needs of the colony. They feared, quite justifiably, that a continuing supply of free convict labour would undermine their employability and wages. As the British penal code was relaxed during the 1830s, those who were transported tended to be the more serious offenders, and increasingly there were fears expressed in all strata of Australian society that a continuation of transportation would increase the crime rate. The 1834 murder of prominent citizen Dr Robert Wardell by a serial convict offender in bush near the doctor’s home at Petersham caused a massive outcry against further transportation. By 1840, the forces against transportation were overwhelming.

  Meanwhile, in England in 1837, the House of Commons Select Committee on Transportation was established to advise the government on the future of transportation. Its head, Sir William Molesworth, was sympathetic to the causes of colonial self-government and the abolition of slavery, and this had a significant impact on how he conducted the Committee.8 Evidence was received about the unpredictable nature of the convict assignment system. In its report in August 1838, the Committee concluded that transportation was not an effective deterrent to crime, that private assignments were iniquitous, and that the system of secondary punishment by flogging was retrograde. The report observed that a convict might be ‘well fed, well clothed, and well treated by a kind and indulgent master, or he may be the wretched, praedial [relating to land] slave of some harsh master, compelled by the lash to work’. Molesworth relied heavily on the incidence of lashings to argue that the convict system was akin to slavery, which had been abolished in 1833. In a similar vein, his report quoted Governor Bourke’s statement that the disciplinary laws of New South Wales, enabling single magistrates to order up to fifty lashes for insolence and other minor offences, amounted to a ‘slave code’.9 The committee recommended that transportation should cease as soon as possible.

  On 22 May 1840, with a reformist Whig government in office, an Order-in-Council of the Privy Council removed New South Wales from the list of places to which convicts could be sent.10 The order acknowledged: the dependence of the early colony on convict labour for its establishment, survival and expansion; the brutal convict origins of Australia; and the cessation of transportation arising from concerns that it was not a deterrent to crime and not a fair punishment for minor transgressions. Between 1788 and 1840, more than 80 000 convicts had been sent to New South Wales. About 85 per cent were men and 15 per cent women. Almost two-thirds were English (along with a small number of Scottish and Welsh), with the Irish making up the remaining third. Many were first offenders who had been convicted of minor property offences. The assignment of convicts to private settlers formally ended the following year. New South Wales had officially ceased to be a penal settlement and could now more effectively move towards becoming a free, democratic and self-governing society.

  * * *

  John and Maria Plunkett waited patiently in Sydney for more than two years before the Governor finally found a temporary solution by appointing Roger Therry as acting Attorney General and William à Beckett as acting Solicitor General. Just prior to their departure, a public dinner was held in John Plunkett’s honour, described as ‘the grandest and most respectable event ever given in the colony’.11 By then, much of the public opprobrium from the Myall Creek murder trials had died down. Plunkett was presented with a silver entrée dish inscribed: ‘Presented to John Hubert Plunkett, Esq., M.L.C., Attorney General, By the People of Ne
w South Wales as a token of respect for his Public Character and esteem for his Private Worth, Sydney, March, AD 1841’ together with the Plunkett coat of arms and crest.12

  John and Maria finally set sail on the Kelso in March 1841.

  * * *

  John Plunkett’s time in Great Britain was not all relaxation and pleasure. He used the opportunity to lobby the Colonial Office in London for legislation to make the New South Wales Legislative Council more democratic, so that it would consist of a majority of elected representatives. Previously, the Council had consisted only of unelected, ‘ex officio’ members who held high office in the colony and a few wealthy landowners chosen by the Governor. Plunkett advocated to the Colonial Secretary in favour of a wide franchise, however the influence of the Exclusives prevailed in their wish to restrict the right to vote to those of substantial property. What resulted from Plunkett’s lobbying was the Imperial New South Wales Act of 1842, which enlarged the Legislative Council to thirty-six seats, of which twenty-four were elected and only twelve appointed by the Governor. Plunkett played a major role in assisting George William Hope,13 the Under-Secretary of State for the Colonies, to draft the Bill, and Plunkett was given an opportunity to review the final version of the legislation before it was submitted to the Parliament at Westminster. In these ways he played a significant role in convincing the British Government to introduce the first steps towards responsible, democratic, self-government in the colony. Secretary of State Stanley later wrote to Governor Gipps:

  I have also gladly availed myself of the presence in this country of the Attorney General of New South Wales, to obtain the benefit of his local knowledge and experience in the arrangement of many points of detail. Under these circumstances the Bill has passed without a dissenting voice through both Houses of Parliament.14

  It was later said: