Murder at Myall Creek

by Mark Tedeschi

  * * *

  Richard Windeyer, one of the junior counsel for the accused at both trials, later became an advocate for Aboriginal welfare and rights, and played a significant role in the establishment of the New South Wales Aboriginal Protection Society. He was influenced in this not only by his experiences during the two Myall Creek murder trials, but also by the trial in May 1836 of the two Aboriginal men, Jack Congo Murrell and Bummaree. By 1842, Windeyer was a large landowner in the Hunter River Valley. He was elected to the Legislative Council in 1843. In 1846, he spent Christmas day in Darlinghurst Gaol after being convicted of contempt of court by Chief Justice Sir Alfred Stephen, for calling John Darvall, his opposing counsel, a liar and shaping up to fight him during the hearing of a case. Richard Windeyer died near Launceston in 1847.

  * * *

  William Foster, the other junior counsel for the defence at both trials, had arrived in the colony in 1827, whereupon he was appointed as Solicitor General and Chairman of the Court of Quarter Sessions (now Chief Judge of the District Court). The following year he became Commissioner of the Court of Requests. From 1843 to 1845 he was an elected member of the New South Wales Legislative Council.

  * * *

  Mr Henry Keck, the gaolkeeper of the George Street Gaol where the seven Myall Creek murderers were hanged, became the first governor of Darlinghurst Gaol in 1841. He was later dismissed for having a variety of enterprising commercial schemes involving the misuse of prisoners to make money for himself.

  * * *

  After the execution of Archbishop Oliver Plunkett in 1681, his remains were buried in a London churchyard for two years and then removed to a Benedictine Monastery in Germany. Exactly 200 years later, in 1881, part of his body was transferred to the Benedictine Abbey at Downside, Somerset, in England. His head was brought to Rome, and from there to Armagh, and eventually to Drogheda in Ireland where, since 1921, it has rested in Saint Peter’s Church. In 1920, Oliver Plunkett was beatified, and in 1975 he was made a Saint by Pope Paul VI – the first new Irish Saint for almost 700 years. In 1997, he was made the patron Saint for Peace and Reconciliation in Ireland. Today St Peter’s Church in Drogheda is the site of a national shrine to Saint Oliver Plunkett.

  * * *

  Very few memorials mark the sites where Aborigines were killed by European settlers and their armed retainers during the ‘war of extirpation’ in colonial times. It took more than 160 years for a memorial to be erected at the location of the Myall Creek Station murders. It has come to represent a commemoration of the victims of all massacres of Indigenous people during the colonial era. The idea was first advocated by Len Payne, local cinema projectionist and Apex Club member in Bingara, the nearest township to the station. As previously mentioned, Len Payne had gone to the site of the murders with Cecil Wall, the grandson of William Wall who worked at Myall Creek Station in 1838 but was not involved in the murders. Payne recorded Cecil Wall’s recollections of his grandfather’s account of the murders. Payne first proposed a memorial to the victims of the massacre in January 1965 with the aim of ‘reminding people of their lack of feeling for the Australian Aborigine’. Initially, the Apex club supported his proposal, however, there was resistance from other members of the local community who felt that a memorial would tarnish the reputation of the district and its residents – so his club abandoned the idea. The negative attitudes in the community were encapsulated in a strident letter to the Bingara Advocate from local resident, TJ Wearne, in which he expressed the view:

  The whole idea is ill conceived, unconsidered and mischievous, and an insult to the Bingara people.

  Payne zealously, but unsuccessfully, maintained his advocacy for a memorial until his death in 1994.16

  In October 1998, at the invitation of Sue Blacklock, a descendant of those who had survived the massacre, a conference on reconciliation was convened at the Myall Creek Community Centre, involving descendants of survivors, other members of the Gamilaroi nation, and supportive non-Indigenous people from the local community and Sydney, including members of the local Uniting Church.17 A decision was taken to erect a permanent memorial and the Myall Creek Memorial Committee was formed to put this into effect. Finally, in 2000, 162 years after the murders, a huge memorial stone was erected at the site of the murders. A moving dedication ceremony on Sunday, 10 June 2000 brought together the descendants of the survivors and the perpetrators. Eight years later, on 7 June 2008, at a memorial service marking the 170th anniversary, the site was placed on the National Heritage List.18 Federal Heritage Minister, the Honourable Peter Garrett, said:

  The fact that the descendants of some of the people massacred on that horrific day in 1838 and the descendants of those charged with the crime can come together in their own peaceful and personal reconciliation gives me great hope for our country and makes me very proud to be an Australian.

  The bronze plaque at the memorial site reads:

  In memory of the Wirrayaraay people who were murdered on the slopes of this ridge in an unprovoked but premeditated act in the late afternoon of 10 June 1838. Erected on 10 June 2000 by a group of Aboriginal and non-Aboriginal Australians in an act of reconciliation, and in acknowledgment of the truth of our shared history. We remember them (Ngiyani winangay ganunga).

  John Hubert Plunkett.

  Courtesy of Mitchell Library, State Library of NSW.

  Archbishop Oliver Plunkett (1625–1681).

  Painting by unknown artist hangs at the Irish College, Rome.

  Governor Sir Richard Bourke.

  Painting by Sir Martin Archer Shee, courtesy of Dixson Galleries, SLNSW.

  Roger Therry, 1834.

  Painting by Richard Read, courtesy of Mitchell Library, SLNSW.

  Governor Sir George Gipps.

  Painting by Henry William Pickersgill, courtesy of Mitchell Library, SLNSW.

  The Supreme Court (with dome), St James’ Church and a barren Hyde Park from Elizabeth St in 1842. The Western Court was approached from the portico on Elizabeth St.

  Drawing by John Rae, courtesy of Dixson Galleries, SLNSW.

  ‘Danger’s Station, Mayal creek’ (sic) from Sketches of Australian scenes 1852–1853 (sic) by JG Sawkins.

  Courtesy of Mitchell Library, SLNSW.

  Letter from William Hobbs to Police Magistrate Invermein concerning the Myall Creek Massacre, 9 July 1838.

  Courtesy of State Records NSW.

  Police Magistrate Captain Edward ‘Denny’ Day.

  Sketch from Australian Town and Country Journal, 27 May 1876, image courtesy of National Library of Australia, NLA MFM NX 442.

  Henry Dangar. Sketch from Australian Men of Mark, volume 1, 1889–1890.

  Image courtesy of National Centre of Biography, Australian National University.

  Justice William Westbrooke Burton.

  Image courtesy of Government Printing Office, SLNSW.

  The site of the first Board of National Education school and teacher training facility – formerly a military hospital at Fort St on Sydney’s Observatory Hill. It is now the SH Ervin Gallery.

  Photograph by Charles Percy Pickering, courtesy of Government Printing Office, SLNSW.

  The remains of Saint Oliver Plunkett’s chalice.

  Courtesy of St Mary’s Cathedral, Sydney.

  Elders and dignitaries at the memorial site in 2015, including (L to R): Rev Dr John Brown, Aunty Sue Blacklock, Kelvin Brown, unknown, Uncle Lyle Munro, unknown.

  Photograph courtesy of Michael Burge.

  ABOUT THE AUTHOR

  Mark Tedeschi AM QC is the Senior Crown Prosecutor for New South Wales. He has practised as a barrister in the criminal courts for almost 40 years, both for the prosecution and the defence. He is a Visiting Fellow at the University of Wollongong, a Member of the Board of Directors at the National Art School, and a Trustee of Sydney Grammar School. He is also a photographer whose works are held in many galleries and private collections. Mark lives and works in Sydney.

  For more information, see his webs
ite:

  www.MarkTedeschi.com.

  authors.simonandschuster.com/Mark-Tedeschi

  Also by Mark Tedeschi

  Eugenia – A True Story of Adversity, Tragedy, Crime and Courage

  Kidnapped – The Crime that Shocked the Nation

  ENDNOTES

  Chapter 1

  1 Now Court 3, King Street. At the time there were only two courtrooms. The Eastern Court was used as the Banco (appeals) Court. See http://designbase.com/heritagesites/KSsite/10heritage/history/kingsthist.html

  2 In the New England district of northern New South Wales. The nearest large town is Inverell. The nearest small town is Bingara.

  3 http://www.saintoliverplunkett.com/literature.html#book1

  4 The English were anxious to avoid a repetition of the Irish rebellion that had occurred in 1641.

  5 ‘The trial of Dr Oliver Plunkett’, in Cobbett’s Complete Collection of State Trials, London, 1810, volume 8, page 447.

  6 For an excellent comparison between the convict system and slavery, see John Bradley Hirst, Freedom on the Fatal Shore: Australia’s First Colony, Black Inc, 2008, chapter 2.

  7 The thirteen female factories were situated at Parramatta (2), Bathurst, Newcastle, Port Macquarie (2), Moreton Bay (2), Hobart Town, Georgetown, Cascades, Launceston and Ross.

  8 Tasmania.

  9 See John Braithwaite, ‘Crime in a Convict Republic’, (2001), volume 64, Modern Law Review, page 11.

  10 Lieutenant-General Sir Richard Bourke was the ninth Governor of New South Wales, between 1831 and 1837.

  Chapter 2

  1 Built in 1806 and home of the Plunkett family until the mid-nineteenth century. Described in 1851 as a ‘superb mansion’; the entrance gates are still in use, but only low walls remain of the house and outbuildings. See http://landedestates.nuigalway.ie/LandedEstates/jsp/property-show.jsp?id=1154.

  2 The Plunketts of Roscommon should not be confused with the family of Lord William Plunket, a Presbyterian from County Fermanagh, who was Ireland’s Solicitor General and Attorney General (1802–07, 1822–27) and later Lord Chancellor of Ireland (1830–1841).

  3 Tony Earls, Plunkett’s Legacy: An Irishman’s contribution to the Rule of Law in New South Wales, Australian Scholarly Publishing, 2009, page 24.

  4 King’s Counsel or Queen’s Counsel.

  5 Since the Act of Union of 1801, Westminster had been the Parliament of the United Kingdom of Great Britain and Ireland.

  6 Earls, page 33.

  7 It was not until 1858 that the political emancipation of British Jews was achieved with the passing of the Jews Relief Act. The Act removed the words from the Oath of Allegiance that stated ‘and I make this Declaration upon the true faith of a Christian’.

  8 Earls, page 50, footnote 85.

  9 John Molony, An Architect of Freedom: John Hubert Plunkett in New South Wales, 1832–1869, ANU Press, 1973, page 10.

  Chapter 3

  1 Max Waugh, Forgotten Hero: Richard Bourke, Irish Governor of New South Wales, 1831–1837, Australian Scholarly Publishing, Melbourne, 2005, page 2.

  2 Hazel King, Richard Bourke, Oxford University Press, Melbourne, 1971, pages 8–9, 12–14.

  3 Historical Records of Australia, series 1, volume 17, pages 284–5.

  4 Molony, page 13.

  5 The equivalent of the current NSW District Court.

  6 Dr Gregory D Woods ‘A History of Criminal Law in New South Wales: The Colonial Period, 1788–1900’, Federation Press, 2002, pages 67–69.

  7 Chief Justice Francis Forbes, Justice James Dowling and Justice William Burton.

  8 ‘Attainted Jurors Opinion’ [1833] NSWSupC 75. See: http://law.mq.edu.au/research/colonial_case_law/nsw/cases/case_index/1833/attainted_jurors_opinion/

  9 For a discussion of the interaction between Aborigines and the courts, see Brent Salter, ‘For Want of Evidence: Initial Impressions of Indigenous Exchanges with the First Colonial Superior Courts of Australia’, The University of Tasmania Law Review, 2008, volume 27, page 145.

  10 For example: R. v. Jackey [1834] NSWSupC 94; http://www.law.mq.edu.au/research/colonial_case_law/nsw/cases/case_index/1834/r_v_jackey/ See also: Russell Smandych, ‘Contemplating the Testimony of “Others”: James Stephen ‘The Colonial Office, and the Fate of Australian Aboriginal Evidence Acts, Circa 1839–1849’, 2004, Australian Journal of Legal History, volume 8, page 237.

  11 The Australian, 17 May 1836. See also: http://www.law.mq.edu.au/research/colonial_case_law/nsw/cases/case_index/1836/r_v_murrell_and_bummaree/

  Chapter 4

  1 J Lowndes, ‘The Australian Magistracy: From Justices of the Peace to Judges and Beyond’, Part I, 2000, volume 74, Australian Law Journal, pages 509–532.

  2 There was also another Plunkett in the colony: Edward Plunkett, the keeper of the Liverpool madhouse, who was unrelated. Molony, page 20, footnote 37.

  3 David Plater & Sangeetha Royan, ‘The Development & Application in 19th Century Australia of the Prosecutor’s Role as a Minister of Justice: Rhetoric or Reality?’, 2012, 31 University of Tasmania Law Review 78. For a report of the trial see Sydney Herald, 2 March 1837, page 2.

  4 Faunce v. Cavenagh [1838] NSWSupC 24; http://www.law.mq.edu.au/research/colonial_case_law/nsw/cases/case_index/1838/faunce_v_cavenagh/

  5 John Bradley Hirst, Freedom on the Fatal Shore: Australia’s First Colony, Black Inc, 2008, pages 45–46.

  6 It has been suggested that this was a cause of resentment between the convicts and the Aboriginal inhabitants. See Christine M Bramble, ‘Relations between Aborigines and White Settlers in Newcastle & the Hunter District, 1804–1841’, Dissertation, University of New England, January 1981, especially the conclusion at pages 79–80.

  7 R v Hitchcock and others [1833] NSWSupC 114. See: http://www.law.mq.edu.au/research/colonial_case_law/nsw/cases/case_index/1833/r_v_hitchcock_and_others/. For Mudie and Larnach’s version, see James Mudie, ‘Vindication of James Mudie and John Larnach, Sydney, September 1834’; http://www.nla.gov.au/apps/doview/nla.aus-f1824-p.pdf.

  8 Sir Roger Therry, Reminiscences of Thirty Years’ Residence in New South Wales and Victoria, London, 1863, Sydney University Press, 1974, page 165.

  9 Only five of them on the attempted-murder charge.

  10 Roger Therry, page 169.

  11 For a discussion on the allegations against Mudie and Larnach, see John Bradley Hirst, pages 171–2.

  12 James Mudie, ‘Vindication of James Mudie and John Larnach’.

  13 London, 1837. See http://gutenberg.net.au/ebooks13/1300721h.html

  14 Isobelle Barrett Meyering, ‘Abolitionism, Settler Violence and the Case Against Flogging, A Reassessment of Sir William Molesworth’s Contribution to the Transportation Debate’, History Australia, volume 7, number 1, 2010, Monash University ePress, pages 6.4–6.5.

  15 JM Bennett, Sir William à Beckett: First Chief Justice of Victoria 1852–1857, Federation Press, 2001.

  16 See: http://www.law.mq.edu.au/research/colonial_case_law/nsw/cases/case_index/1834/r_v_jenkins_and_tattersdale/

  17 See the extract from a speech by H Snelling QC, ‘Some Remarks Upon the History of the Bar in New South Wales’, The Bar Gazette, 1961, 2 NSW Bar Gazette, page 3.

  18 Unrelated to the modern-day newspaper of the same name.

  19 It should be recalled that in 1834 there were only about 70 000 non-indigenous people in the whole of New South Wales.

  20 http://www.law.mq.edu.au/research/colonial_case_law/nsw/cases/case_index/1834/r_v_jenkins_and_tattersdale/

  21 Ibid.

  22 Sydney Herald, 13 November 1834.

  Chapter 5

  1 Alex Castles, ‘The reception and status of English law in Australia’, 1963, Adelaide Law Review.

  2 Prue Vines, Law and Justice in Australia, Oxford University Press, Melbourne, 2nd edition, 2009, page 174. See also Enid Campbell, ‘Colonial Legislation and The Laws of England’, 1965, 2 Tasmanian University Law Review 148.

  3 Cable v. Sinclair [1788] NSWKR 7; [17
88] NSWSupC 7. See: http://www.law.mq.edu.au/research/colonial_case_law/nsw/cases/case_index/1788/cable_v_sinclair/

  4 Historical Records of Australia, series 1, volume 17, pages 224–33. See Earls, pages 74–6.

  5 Historical Records of Australia, series 1, volume 18, pages 201–07. See Earls, pages 77–8.

  6 All mail had to come by sea – a journey of four months, or at least eight for return mail.

  7 Earls, pages 69–78.

  8 Historical Records of Australia, series 1, volume 18, page 472. See Alan Raphael Barcan, ‘Opinion, Policy and Practice in N.S.W. Education, 1833–1880; The Development of an Educational Tradition’. Thesis submitted for the Degree of Doctor of Philosophy in the Australian National University, December 1962, page 17.

  9 Barcan, pages 17–23. The issue of state aid to private schools continues to be a sensitive electoral issue.

  10 A decade later, many of the same religious leaders recognised that they had lost out by opposing the schools proposal.

  Chapter 6

  1 The area is drained by the Namoi River and its tributaries, the Mooki River and the Peel River. https://en.wikipedia.org/wiki/Namoi_River. Current-day towns include Gunnedah, Narrabri, Quirindi and Tamworth.

  2 Leonard L Payne, ‘Then and Now – notes on the Myall Creek Massacre of 1838’, pages 2–3, in Papers on the Myall Creek Massacre, 1964–1979, manuscript, National Library of Australia, BibID: 102008, MS 9619.

  3 An attack involving plunder and pillage to buildings, property and/or animals.