4 John Ross (ed), Chronicle of Australia, 1993, page 240.
5 Annual Report of the Aboriginal Mission at Lake Macquarie, New South Wales – 1835, in The Perth Gazette and Western Australian Journal, 3 December 1836, page 810. See: http://trove.nla.gov.au/ndp/del/article/640187
6 Present-day Scone, more than 200 miles (350 kilometres) to the south.
7 To completely get rid of, kill off, or destroy somebody or something considered undesirable.
8 Acting Governor from 5 December 1837 till 23 February 1838.
9 Later Australia Day.
10 Situated near the present-day township of Bingara (pronounced with the emphasis on the ‘i’), a small town in the New England region of New South Wales.
11 Pronounced ‘bInga:ra:’ with the emphasis on the first ‘a’.
12 Lyndall Ryan, ‘A very bad business: Henry Dangar and the Myall Creek Massacre 1838’, presented to a Conference of the Centre of the History of Violence, University of Newcastle, 27 November 2008, page 4.
13 Such breastplates were a clear marker of acceptance by white society. It was akin to the modern-day identification tags provided by military forces to the Press in war zones. A breastplate in the war zones between non-indigenous and indigenous combatants in the 1830s should similarly have protected the wearer and his tribe.
14 Located between present-day Manilla and Bendemeer.
15 http://www.the1788-1820pioneerassociation.org.au/Henry%20Flemming.html
16 The inn still survives at 104 Bathurst Street. Originally called the ‘Blighton Arms’, it was renamed the ‘Macquarie Arms’. Next door is ‘Mulgrave Place’, a house built in 1823 where the Fleming family lived. Pitt Town was one of the five ‘Macquarie Towns’ established by Governor Lachlan Macquarie in 1810. Although a site for the village was laid out near to the Hawkesbury River in 1811, due to frequent flooding it was relocated in 1815 to its present location further from the river.
17 Ebenezer.
18 See the article by Marie Turnbull in Clan Turnbull Ebenezer Newsletter, volume 4, number 2, July–August 2012, page 4. The article is available at: http://turnbullclan.com/tca/newsletters/ebenezer/2012_v03_n02_july-august.pdf.
19 Possibly a former slave from the Caribbean, who had escaped to England.
20 A light shotgun for shooting birds and small animals.
21 AJ Howard, Bingera Run, Australian Origins and Heritage Library, 2012. See http://www.bingara.com.au/files/uploaded/file/Bingera_Run_2012.pdf.
22 Later known as Jimmy Munro.
Chapter 7
1 See Len Payne, ‘The Myall Creek Massacre’ and ‘An Interview with Len Payne, Bingara NSW, 27 June 1994’ by Patrick Collins, referred to in Patrick Collins, Goodbye Bussamarai: The Mandandanji Land War, Southern Queensland, 1842–1852, self-published by the author. See also: http://www.goodbyebussamarai.com/page9.htm.
Chapter 8
1 Letter from William Hobbs to Police Magistrate Invermein concerning the Myall Creek Massacre, 9 July 1838, State Records New South Wales, series number 19437.
2 Now Denman.
3 Magistrate Day’s greatest exploit in arresting bushrangers was yet to come. In December 1840 he was responsible for the capture at Doughboy Hollow of the so-called ‘Jewboy Gang’, which had been active in the Maitland, Newcastle, Lake Macquarie, Wollombi, Dungog, Muswellbrook and Scone districts.
4 RHW Reece, Aborigines and Colonists: Aborigines and Colonial Society in New South Wales in the 1830s and 1840s, Sydney University Press, Sydney, 1974, page 146.
5 On 11 December 1838, John Henry Fleming’s father, Henry Fleming, died aged forty-seven. It was said that he suffered greatly from the fear that his son would be apprehended and face a similar fate to the other perpetrators.
6 New South Wales Government Gazette, 12 September 1838, pages 81–84; see Reece, page 146.
7 See Patrick Collins, ‘An Interview with Len Payne, Bingara NSW, 27 June 1994’, referred to in Patrick Collins, Goodbye Bussamarai: the Mandandanji Land War, Southern Queensland, 1842–1852, self-published by the author. See also http://www.goodbyebussamarai.com/page9.htm.
Chapter 9
1 See Chapter 4.
2 See Chapter 4.
3 See: Myall Creek Massacre, NSW Parliament Hansard, 8 June 2000, page 6894.
4 14 September 1838.
5 Sydney Herald, 14 November 1838, page 2.
Chapter 10
1 This courthouse, since added to several times, is still standing. The author has conducted many trials in what was formerly the Western Court, but is now Court 3.
2 Questioning by the party calling the witness – in this case, the prosecutor.
3 Questioning by the opposing party – in this case, the defence.
4 Questioning by the party calling the witness to clarify or qualify any issue that has arisen during cross-examination.
5 He omitted to mention John Fleming. This may have been a technical requirement because Fleming was not on trial. In case Fleming was later apprehended, it was undesirable for there to be any publicity in the newspapers of his involvement, which could prejudice a subsequent trial.
6 This is explained later in Chapter 12.
7 Counsel’s right to make an address to the jury after the prosecution case was only introduced in New South Wales in 1840 with the adoption of the 1836 English Prisoners’ Counsel Act. See GD Woods, pages 145–148.
8 Letter to the editor, The Australian, 8 December 1838.
Chapter 11
1 The Australian, 27 November 1838.
2 The Australian, 27 November 1838.
Chapter 12
1 For a brief synopsis of his life, showing his wide education, life experience, interests and commitment to Aboriginal welfare, see the entry in the Australian Dictionary of Biography: http://adb.anu.edu.au/biography/burton-sir-william-westbrooke-1857
2 The association’s involvement was admitted more than ten years later in the Sydney Herald, 29 June 1849.
3 This procedure is no longer applicable in New South Wales.
4 The Sydney Gazette and New South Wales Advertiser of 1 December 1838, page 2, also reported this part of the address.
5 See RH Helmholz & others, The Privilege Against Self-Incrimination – its Origins and Development, University of Chicago Press, 1997, pages 145–48.
6 See GD Woods, chapter 26.
7 This has become known as the rule in Jones v Dunkel – a High Court case. See (1959) 101 CLR 298.
8 For example, see R. v. Burdett (1820) 4 B & Ald 95 (106 ER 873). It was only in 2002 that this inference was declared by the High Court of Australia to infringe the accused’s right to silence. See Dyers v The Queen (2002) 210 CLR 285.
9 For a more recent example, see R v Williamson [1972] 2 NSWLR 281.
10 See the decisions of the Privy Council in DPP v Lynch [1975] 1 All ER 913 and Abbott v R [1977] AC 755.
11 The questions from Plunkett have been inferred from the summary of the evidence recorded in the newspaper reports. In those days, there were no court reporters and the official record was the judge’s notes. The newspapers reported a fairly full summary of the testimony from the witnesses, rather than the question-and-answer format of today’s official court record.
12 A case in reply is limited to answering evidence in the defence case – in this instance, the character evidence.
13 Prisoners’ Counsel Act. See Sydney Monitor and Commercial Advertiser, 26 October 1840, page 2; and GD Woods, pages 145–48.
14 The black cap was part of the official robes of a Supreme Court judge, worn when passing a sentence of death. It had its genesis in English Tudor court headgear. As styles of official dress changed, the cap was retained as an indicator of the formality of the occasion. It is still carried today by High Court Judges in England and Wales as part of their official dress.
15 10 December 1838, page 2. See Molony, page 144.
16 Reece, page 159.
17 Sydney Gazette, 20 December 1838, page 2.
18 Ibid.
19 Letter from JH Bannatyne to Windsor Berry Esq. relating to the Myall Creek Massacre, 17 December 1838 with postscript 18 December 1838, State Library of New South Wales. See: http://www.acmssearch.sl.nsw.gov.au/search/itemDetailPaged.cgi?itemID=1336513
20 Governor Gipps’ report to Lord Glenelg, 8 January 1839, Historical Records of Australia, series 1, volume 19.
21 Reece, pages 158–59. See also Roger Therry, Reminiscences of Thirty Years’ Residence in New South Wales and Victoria, London, second edition, 1863 (reprinted by the British Library), page 283.
Chapter 13
1 See Molony, page 146.
2 Sydney Herald, 24 December 1838.
3 Neil Gunson ed., Australian Reminiscences & Papers of LE Threlkeld, Missionary to the Aborigines, 1824–1859, (Australian Aboriginal Studies number 40, Australian Institute of Aboriginal Studies, Canberra 1974), volume II, page 275.
4 See Colin Tatz, ‘Genocide in Australia: By Accident or Design?’, Indigenous Human Rights and History: Occasional papers, Monash Indigenous Centre and Castan Centre for Human Rights, Monash University, 2011, pages 23–24.
5 Reece, pages 176–77.
6 Reece, page 165.
7 From the 1840s and 1850s there were also Native Police forces (led by whites) in many parts of Australia that were involved in massacres. See Colin Tatz.
8 For a list of some that became known to the authorities, see Reece, pages 186–193. See also ‘An unfinished and incomplete compilation of Frontier Conflicts, Wars and Massacres in Australia, 1770–1940s’, compiled by Jane Morrison, Australian Frontier Conflicts, reproduced by the Friends of the Myall Creek Memorial and the Sydney Friends of Myall Creek, 2016.
Chapter 14
1 Sir George Gipps to Marquess of Normanby, 14 October 1839, in Historical Records of Australia, 1st series, volume 20, Governors’ Despatches to and from England, February 1839–September 1840, page 368.
2 The Attorney General and Solicitor General to Lord John Russell, 27 July 1840, in Historical Records of Australia, 1st series, volume 20, Governors’ Despatches to and from England, February 1839–September 1840, page 756. See generally Russell Smandych, ‘Contemplating the Testimony of Others: James Stephen, the Colonial Office, and the fate of Australian Aboriginal Evidence Acts, circa 1839–1849’, Australian Journal of Legal History, volume 8, 2004, pages 237–283.
3 See Russell Smandych, page 237, Parts I and II.
4 Public Records office (UK), CO 201/332, folio 238, Sir George Gipps to Lord Stanley, 3 April 1843, Despatch number 46.
5 Public Records office (UK), CO 201/344. folios 163-319. Sir George Gipps to Lord Stanley, 21 March 1844, Despatch number 68.
6 [1840] NSWSupC 78. See Sydney Herald, 5 November 1840; Sydney Monitor, 5 November 1840. See also 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, volume 31, University of Tasmania Law Review 78.
7 Molony, page 136.
8 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, 2010, volume 7, number 1.
9 Isobelle Barrett Meyering, page 6.6.
10 Order-in-Council ending transportation to New South Wales, 22 May 1840, State Records New South Wales. See: http://www.migrationheritage.nsw.gov.au/exhibition/objectsthroughtime/order-ending-transportation-to-nsw/
11 Australian Chronicle, 4 March 1841.
12 Now in the Powerhouse Museum, Sydney.
13 Incorrectly described in Molony as DW Hope.
14 Molony, page 42.
15 Obituary in the Sydney Morning Herald, 19 May 1869.
16 Sydney Morning Herald, 21 June 1844. See http://trove.nla.gov.au/ndp/del/article/12421111
17 Sydney Herald, 21 June 1844.
18 Bruce Kercher, An Unruly Child: A History of Law in Australia, Allen & Unwin, 1995, pages 16–17. See also Russell Smandych.
19 William à Beckett went on to become the first Chief Justice of the Colony of Victoria.
20 Molony, page 262, note 57.
21 Chief Justice Murray Gleeson.
22 Maitland Mercury, 22 July 1848.
23 Molony, page 126; Woods, page 166.
24 Sydney Morning Herald, 16 September 1847: see Molony, page 129.
25 Henry (later Sir Henry) Parkes (1815–1896) was to become Premier of New South Wales on many occasions and was at the forefront of the movement promoting federation of the colonies into the Commonwealth of Australia.
26 See Earls, pages 144–49 for a good summary of his speech.
27 Molony, page 133.
Chapter 15
1 The Nicholson Museum at the University of Sydney is named after him.
2 Macleay’s library and collection of specimens were transferred in 1890 to the Macleay Museum at the University of Sydney.
3 Now the SH Ervin Gallery on Observatory Hill.
4 Joseph Burke, ‘The Contribution of John Hubert Plunkett to Education in the State of New South Wales, 1832–1869’, BA (Hons) thesis, University of Sydney, 1961, page 76.
5 Burke, page 120.
6 Clifford Turney, Grammar: A History of Sydney Grammar School – 1819–1988, Allen & Unwin, 1989, pages 27–32.
7 The author is currently a trustee.
8 The fagging system remained a feature of most of the English boys’ boarding schools until the 1970s and 80s.
9 Royal Charter of the University of Sydney. See: http://sydney.edu.au/policies/showdoc.aspx?recnum=PDOC2011/51&RendNum=0
10 At that time the position of Vice-Chancellor was not the same as today. It was a part-time position as deputy to the Chancellor.
11 Unfortunately, Tarmons was demolished in the 1960s.
12 Both the Catholic and Protestant Bibles incorporate twenty-seven books in the New Testament. The Protestant Bible, however, has only thirty-nine books in the Old Testament, while the Catholic Bible has forty-six. The seven additional books included in the Catholic Bible are: Tobit, Judith 1 and 2, Maccabees, Wisdom, Sirach and Baruch. The Catholic Bible also includes sections in the Books of Esther and Daniel that are not found in the Protestant Bible.
13 See Monsignor CJ Duffy, ‘The Incident of the Moving of the Bible at Saint Vincent’s Hospital, Sydney, 1859’, Journal of the Australian Catholic Historical Society, volume 3, number 3, 1971, page 62.
14 Freeman’s Journal, 1 June 1859. Also Molony pages 262–65.
15 20 June 1859.
16 9 July 1859. See Molony pages 264–65.
17 Dr Maxwell Coleman, ‘Sr. M John Baptist De Lacy, Dr James Robertson and the Bible Incident Revisited’, in St Vincent’s Clinic Proceedings, volume 21, number 1, December 2013.
Chapter 16
1 Dr Henry Grattan Douglass (1790–1865) was an honorary physician at Sydney Hospital and one of the first teachers of clinical medicine in Australia. In 1854 he was appointed a director of the hospital, but resigned after two years to take a seat in the first Legislative Council under responsible government.
2 Sydney Morning Herald, 24 November 1851, page 2.
3 Ibid, page 3.
4 It is now on display at the Lambing Flat Folk Museum in Young.
5 Sydney Morning Herald, 31 March 1858.
6 Jo Lennan and George Williams, ‘The Death Penalty in Australian Law’, Sydney Law Review, 2012, volume 34, at page 666.
7 Molony, pages 168–69.
8 Lennan and Williams, page 665.
9 Sydney Morning Herald, 1 November 1867. See Amanda Kaladelfos, ‘The Politics of Punishment: Rape and the death penalty in colonial Australia, 1841–1901’, History Australia, 2012, volume 9, number 1, page 155 and page 162.
10 Sydney Morning Herald, 1 November 1867, page 2.
11 9 December 1867, page 6.
Chapter 17
1 Sydney Morning Herald, 16 July 1856, pages 4–5.
2
To this day Australians view official titles with some disdain. Witness the public reaction to the appointment of Prince Philip as an Australian knight by Prime Minister Tony Abbott in January 2015.
3 Earls, page 171.
4 The New South Wales Upper House members remained appointed until a referendum in 1977.
5 Anne Twomey, The Constitution of New South Wales, Federation Press (2004), pages 16-21.
6 See Woods, pages 167–68.
7 This was gradually surrendered through the enactment of the following legislation: Colonial Laws Validity Act, 1865 (UK), Statute of Westminster, 1931 (UK), Statute of Westminster Adoption Act, 1942 (Cwth), Australia Act, 1986 (Cwth), and Australia Act, 1986 (UK).
8 Sydney Morning Herald, 26 June 1856. See Molony, page 239.
9 Molony, page 215.
10 Earls, page 180.
11 Molony, footnote page 220.
12 Sydney Morning Herald, 22 February 1856.
13 Empire, 9 January 1856. The Empire was founded by Henry Parkes in 1850.
14 In those days it was possible for a candidate to stand for multiple seats. In the event of winning more than one, the candidate would have to make an election.
15 http://www.nswbar.asn.au/the-bar-asssociation/bar-history
16 Molony, page 244.
17 Molony, page 245.
18 Molony, page 278.
19 See Molony, pages xiii and 9–10.
20 During the 1850s and 1860s many shipping companies were established, providing a network of regular steamer services between the Australian colonies.
21 Sydney Morning Herald, 19 May 1869.
22 Molony page 276.
23 In all, Cowper was Premier five times.
Chapter 18
1 The ‘Dead March’ is a funeral anthem from George Frideric Handel’s oratorio Saul, 1738. The libretto, taken from the first book of Samuel, tells of the downfall of King Saul and the destructive power of envy.
2 At the location of the current Central Station. The Mortuary railway platform is the only part of the cemetery still in existence.
3 Sydney Morning Herald, 19 May 1869.
4 In 1837, Plunkett purchased 1280 acres of land west of Wollongong near Mt Keira, which he named ‘Keelogues’. By 1840 he had subdivided and sold it.
5 Earls, page 212.
6 Ibid.
7 However, Maria Plunkett’s obituary in the Sydney Morning Herald of 17 August 1895 states that ‘Mrs Plunkett had been in receipt of a pension from the Crown in consideration of her husband’s long and splendid public services’. Presumably the Government relented at some time in the intervening years.
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