Murder at Myall Creek
Page 23
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John Plunkett should be best remembered for his efforts to achieve equality before the law for all men. In order to assess his success at this broad and ambitious objective, it is necessary to look closely at the long-term effects of the Myall Creek murder trials. The two 1838 trials marked one of only a handful of times in the history of Aboriginal displacement that Europeans were punished – and punished appropriately – for the murder of Aboriginal Australians. Those trials stand as an early demonstration that Australian courts had the capacity to protect the weak and disenfranchised, to operate without fear or favour, and to treat all people equally, including those on the margins of society. That is not to say that the law always operated in this benevolent way, or even that it frequently did, but on the occasion of the Myall Creek murder trials it certainly did. Plunkett’s advocacy and trial tactics succeeded in persuading a jury of twelve free men and freed men to convict seven white defendants for the brutal slaying of an Aboriginal child – representing twenty-eight members of that infant’s tribe. In fact, if one takes into account the special jury that allowed the second trial to proceed, Plunkett succeeded in convincing twenty-four jurors of the need for justice arising from the deaths at Myall Creek Station. That he was able to do this in the face of almost universal hostility to the prosecution was nothing short of miraculous. It would never happen again during the colonial period, or even after the federation of the Australian states in 1901. Tribute must also be paid to the trial judge, William Westbrooke Burton, who set the tone for a fair second trial, and to the twelve jurors who were brave enough to convict the seven defendants in the face of hostile public opinion.
It has been argued that the Myall Creek murder trials were one of the early significant steps in differentiating Australia from the mother country.12 The author disagrees. The process of delineating Australians from those back in the mother country began early in the history of the colony with the imaginings of the white population who saw themselves as pioneers in a remote and hostile, but enormously promising environment; where the bush was something that most people feared; where the Aborigine was viewed as a source of threat to be overcome; where convict labour was the backbone of the economy, but also offered hope and prosperity at the end of servitude; where struggle and strife stood side by side with the potential for undreamed-of prosperity; where opportunities for advancement – economically and socially – abounded in ways that never existed in the home country. All these self-imaginings made colonial Australia a very different society to the one most whites had left behind in England or Ireland. The trials coalesced much of the white population, including settlers, emancipists and convicts, and, in a perverse way, galvanised their self-image as pioneers in a fragile and vulnerable society. What the Myall Creek murder trials did was to demonstrate that even among all these imaginings of the white population, the colony still had in common with the motherland the fundamental tenet of British law: that justice was capable of being applied equally to all persons if those who applied it were sufficiently determined.
There is no doubt that John Plunkett suffered much residual resentment from diverse sections of the New South Wales community for his pursuit of the seven men who were hanged for murder. In 1849, eleven years after the trials, when Plunkett was pursuing one of his Aboriginal evidence Bills in the Legislative Council, a number of members spoke against it, claiming it was merely a device for Plunkett to be given more power, citing his role in the 1838 trials. Robert Lowe, John Foster, Charles Cowper, Edward Hamilton, Robert Fitzgerald and WC Wentworth all spoke against the Bill. The most vehement of them referred to ‘the judicial murder of white men’ in the Myall Creek case. Hamilton referred to ‘the morbid philanthropy’ demonstrated by Plunkett, who was solely responsible for the result of the Myall Creek case, which Hamilton categorised as ‘the blackest stain on the criminal calendar of New South Wales’.13
Even some of those free settlers who held benevolent attitudes towards the Aborigines felt that the stockmen had been unfairly treated. Author, journalist and missionary Alexander Harris wrote in 1853:
From time immemorial it had been the custom for influential settlers to head parties like this, against the blacks. All former governors had sanctioned this method of proceeding, by immediate reprisals; and some of these men had thus been initiated into it. They were hanged for doing what they had been taught was perfectly lawful by their masters; and some of the masters [were] magistrates of the territory.14
Tony Earls, one of the two principal biographers of John Hubert Plunkett, noted that:
Even to the end of his career, Plunkett suffered the open enmity of those who disagreed with his prosecution of the cases, to which his standard reply was that he would have been ashamed had he acted otherwise.15
There is no doubt that the trials failed to stem the tidal wave of annihilations of the Aboriginal inhabitants of Australia. The hangings merely served to drive the murderous acts underground, so that more surreptitious means, such as poisoning, were used instead of brutal, bloody slayings by sword or bullet or herding over cliffs or into swamps.16 However, one cannot assess the significance of the Myall Creek murder trials merely by that measure, just as one cannot assess the success of the Nuremburg trials in Europe after the Second World War by the number of genocides that have been perpetrated since in various parts of the world.
The trials in 1838 should be viewed as the earliest ‘proto-war-crimes’ trials in Australian history. There was undoubtedly an ongoing war, albeit rather one-sided, between the white settlers and the indigenous inhabitants whom they were attempting to displace. The war involved a systemic policy, approved or acquiesced in by the white authorities, of unlawfully exterminating those Aborigines who stood in the way of the expansion of white settlement or posed a threat to the pastoralists and their farming activities. In the author’s view, the perpetrators of the mass murders at Myall Creek Station in 1838 were motivated by genocidal intentions and were an example of what we now call ‘ethnic cleansing’. The fact that almost the whole tribe was decimated – including women and children – demonstrated only too clearly their genocidal intent. The subsequent sexual abuse of one female victim, which spared her life for what must have been a few excruciating days, illustrated the objectification of the victims. Recent history has shown that sexual violence in wartime often goes hand-in-hand with genocide, and that is why systemic sexual offences against enemy populations in war zones are now categorised as war crimes.
In addition, the actions of the perpetrators can be viewed as a classic example of what has become known as ‘collective punishment’ – a form of retaliation whereby a suspected offender’s family members, friends, acquaintances, sect, neighbours or entire ethnic group is targeted for punishment, and where the punished group may have had no direct association with the act that is being punished. The victims in this case were living peacefully on the periphery of white pastoral society and had done nothing to justify their victimisation. Collective punishment has been categorised as a war crime since the 1949 Fourth Geneva Convention, and genocide has been categorised as an international crime by the Genocide Convention that was adopted by the United Nations General Assembly in 1948 and came into force in 1951.
By modern-day standards, the actions of the Myall Creek murderers were war crimes and part of a deliberate, state-sanctioned genocide of the Aboriginal people that today would be punishable by the rules of international criminal law. The fact that vast numbers of genocidal murders went unpunished would today provide evidence of state sanction. While such laws did not exist in 1838, the approach taken by John Plunkett towards the case was consistent with them, and demonstrated an enlightened and visionary attitude that was unparalleled in his time or for more than a hundred years afterwards. John Plunkett did not just prosecute eleven men for murder. He prosecuted his society for its connivance in the attempted annihilation of the Aboriginal people and their culture. His contemporaries subconsciously appreciated that fact, an
d as a result vehemently resented him at the time and for decades afterwards. It was a testament to his persistence and tactical skills that he convinced twelve jurors to convict seven of the perpetrators, because they were not only condemning those men to their deaths, but also stingingly rebuking their own society for the attempted genocide and ongoing displacement of the indigenous inhabitants.
The prosecutions conducted by John Plunkett against those responsible for the murders at Myall Creek should thus be seen as unique proto-war-crimes trials in an age when such measures were unknown. In the author’s view, the 1838 trials had a subtle, long-term effect in promoting an underlying principle of justice and equality for all under Australian law. While they did not prevent future crimes of a similar nature, they stand as a beacon of humanity and interracial justice that illuminated the way for Australia to develop as a civilised nation. In the author’s view, it is no coincidence that Australia today is at the forefront of developments in international criminal law. As a nation, Australia punches well above its weight in many international organisations and forums, but none more so than in the field of international criminal law. Australians were among the most enthusiastic and energetic participants at the 1998 Rome Conference, which led to the establishment in 2002 of the International Criminal Court at The Hague as the ultimate venue for the prosecution of war crimes, genocide, ethnic cleansing and crimes against humanity. Today, Australians are well represented at the Court and in its Prosecutor General’s Office. John Hubert Plunkett was the first Australian prosecutor to point the way forward at a time when few other Europeans had the insight and courage to do so.
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It is difficult to understand how a man who achieved so much for his society and was so revered in his lifetime has come to be so unknown in the general community today. Plunkett’s contemporaries – Bourke, Gipps, FitzRoy, Wentworth, Macarthur, Cowper, Parkes, Forbes, Stephen, Dowling, Burton, à Beckett, Windeyer, West – are all better known than him today, so inevitably one must ask why.
In the author’s view, there are a number of reasons John Hubert Plunkett has virtually disappeared from view in the history of colonial Australia. Plunkett left very few of his own papers. What he kept until his death were mainly letters sent to him, rather than the product of his own hand, so there was very little for later researchers to work with. The few papers he kept were left for many years after his death in the possession of a firm of solicitors, before being deposited in recent years in the State Library in Sydney. A further reason is that John Plunkett undoubtedly waned in his influence and judgement in his later years, and this may have caused a slight diminution in the esteem with which the community held him. A third explanation, and by far the most likely, is that John Plunkett did nothing to ensure that his name would be carried into posterity. He had an irascible personality and few friends, and, like his attitude to money, he cared little for how the public felt about him at the time, or how he would be viewed by history. His bank passbook at the time of his death illustrates how little regard he gave to the balance of his finances, and, in a similar manner, he cared little for the fickle fluctuations of public opinion.
It is also quite bizarre that there are so few memorials to this great Australian who did so much to initiate those freedoms and human rights we cherish so much today that we take them for granted. It begins with Plunkett’s grave. As previously mentioned, in 1869 John Plunkett was buried in the Devonshire Street cemetery in central Sydney. When Maria Plunkett died in 1895, it was already known that the Devonshire Street cemetery was to be demolished to make way for the proposed Sydney Central Railway Station, so Maria was buried at the Waverley Cemetery in the eastern suburbs of Sydney, next to the grave of William Edmond Plunkett, the son of Captain Patrick Plunkett, John Hubert’s first cousin.17 The obituary for Maria Plunkett in the Sydney Morning Herald stated:
The old lady’s grave is beside that of the late Mr WE Plunkett, and it is the intention of the latter’s son (Mr William Patrick Plunkett) to have the remains of his relative, the Hon JH Plunkett, brought from the old Devonshire Street cemetery to Waverley, so that husband and wife who joined hands in marriage far away in Ireland when the nineteenth century was young, may towards its close peacefully rest here in Australia under the same mound of earth.18
In 1901, when the Devonshire Street cemetery was demolished, Father McEncroe’s body was reinterred in the crypt of St Mary’s Cathedral, commensurate with his standing in Australian Catholic history. William Patrick Plunkett, a grandson of Captain Patrick Plunkett, arranged for his grandfather’s body to be reinterred in a Plunkett family vault at the Waverley Cemetery.19 At the same time, John Hubert Plunkett’s body followed the captain’s. However, only the captain and his immediate family were named on the memorial stone, so that John and Maria’s gravesites made no mention of them.
There are few public buildings, streets or institutions that honour John Hubert Plunkett’s name. It is painted above the door of the New South Wales Parliament and in the Legislative Council Chamber.20 There is a plaque at the home of the Sisters of Charity in Potts Point, and his portrait hangs in the busy lobby of St Vincent’s Public Hospital in Darlinghurst. His name is honoured by an annual lecture in legal history21 and a centre for ethics jointly run by the Australian Catholic University and St Vincent’s Hospital. The John Hubert Plunkett Society is a small group of Australian lawyers who desire to promote Irish cultural studies. There is a short street named after him in Woolloomooloo, which has been so truncated by the Eastern Suburbs Railway and Western Distributor that it scarcely still exists. Much better known is the eponymous primary school, which now lists its address as Forbes Street. There are several insignificant suburban streets that are presumably named after him in the Sydney suburbs of Kirribilli, St Leonards and Drummoyne, as well as in the country towns of Nowra in New South Wales and Dandenong in Victoria. The street in Drummoyne intersects with Gipps Street and is parallel to Broughton, Polding and Therry Streets.22
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John Hubert Plunkett had a vision of Australia that was in some ways akin to the vision of America advocated a century later by Dr Martin Luther King Jr: ‘equal opportunities in education, health, recreation, and similar public services; the right to vote; equality before the law’.23 Like Dr King, John Hubert Plunkett fought tirelessly for much of his life to remove the many impediments to that equality. Like Dr King, he believed that advances in human rights had to be gained from within the system by lawful means. Like Dr King, he placed the achievement of his vision above his own personal interests and comfort. Both men eschewed personal wealth. Unlike Dr King, he was not a member of the most oppressed class – in Australia, undoubtedly the Aborigines – but in his place of birth he had been. Both men had been deeply affected by experiences of discrimination early in their lives. Both men were profoundly religious and used their faith as a source of inspiration and courage. Both men were moved by music. Both men had ‘an inner urge to serve humanity’ that could not be ignored or appeased. Both could look beyond the accepted conventions of their time to see eternal truths that today we view as self-evident.24 While Plunkett achieved much through his courtroom advocacy, his skills as an orator and his ability to inspire others with words cannot be compared with those of Dr King. Unlike Plunkett, Martin Luther King Jr has been recognised by numerous memorials, buildings, neighbourhoods, streets, associations, libraries, a non-profit Center for Nonviolent Social Change, and even a national public holiday, which all attest to his greatness.
In Australia, we are short of heroes who have excelled in areas other than sport. We celebrate a most terrible military defeat at the hands of the Turks in 1915, even though it was planned and thoroughly mismanaged by the British. We hold up Ned Kelly as a national symbol – a bushranger who had a vile temper and a shocking record of violence, and who robbed from the rich to give to himself and his family. Our national heroes are often those who can hit, throw or kick a ball. Surely we can agree to fete a man who, in the
early stages of our nation’s existence, achieved so much in creating the freedoms, civil rights and public institutions that we enjoy today. We owe much to John Hubert Plunkett for our heritage as a nation.
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A DIFFERENT CHALICE
Not long after the disappearance of Davy and the release of the four remaining defendants who had been charged with the Myall Creek murders, the arrest warrant for the ringleader, John Henry Fleming, lapsed. Soon after, Fleming came out of hiding and resumed normal life. For the reasons that have already been mentioned, not the slightest attempt was made to bring him to justice. In October 1841, just over three years after the murders, he openly married Charlotte Dunstan at Wilberforce in the Hawkesbury River Valley. In 1842 he was appointed as a trustee for the erection of an Anglican church at St Albans. Like many of his brothers, he lived most of his life as a farmer in the Hawkesbury River district. In the early 1860s he moved to a farm at Wilberforce, where he became a highly respected member of the community. In the 1880s, he was appointed a Justice of the Peace, so it can legitimately, though loosely, be said of him that during his lifetime he went from mass murderer to magistrate.1