Murder at Myall Creek Read online

  Praise for Murder at Myall Creek

  ‘The Myall Creek massacre is a stain on our nation’s soul, with the only positive note being that the law brought the evil perpetrators to justice in a key trial that was a foundation stone for the integrity of our legal system. This wonderful book brings that trial, and the marvellous prosecutor, John Hubert Plunkett, back to life.’

  Peter FitzSimons

  ‘A much needed and appreciated historical insight into the profession of a man who gained respect through the colonial era of Australia and his fight for justice through the law for my people, the Kamilaroi.’

  Aunty Noeline Briggs-Smith OAM, Aboriginal researcher

  ‘Tedeschi’s narrative and portrayal of John Plunkett is evocative and intense . . . [Plunkett was] a very remarkable man.’

  Kelvin Brown, Anaiwan Peoples of the Gamilaroi Nation

  ‘a considered and elegant work’

  Bookseller and Publisher

  Praise for Kidnapped

  ‘Masterfully pieced together by the New South Wales Senior Crown Prosecutor’

  Daily Telegraph

  ‘A broad-brush morality tale about the consuming power of greed’

  Sydney Morning Herald

  Praise for Eugenia

  ‘Crown Prosecutor and barrister Mark Tedeschi QC has drawn on a wealth of legal knowledge and insight’

  Courier-Mail

  ‘an outstanding new true-crime story . . .’

  Sunday Age

  CONTENTS

  ACKNOWLEDGEMENTS

  PREFACE

  1 Verdict

  2 Early years

  3 Juries, oaths and witnesses

  4 Magistrates, bushrangers and the lash

  5 Church and state

  6 Sanctuary

  7 The big bushwhack

  8 Day’s diligence

  9 Dangar’s dilemma

  10 Trial

  11 An offer refused

  12 Retrial

  13 Consequences

  14 Leave, London and the end of transportation

  15 Public education, Sisters of Charity and the incident of the Bible

  16 Dichotomous and deathly debates

  17 Self-government and a slow decline

  18 Legacies

  19 A different chalice

  PHOTOGRAPHS

  ABOUT THE AUTHOR

  ENDNOTES

  BIBLIOGRAPHY

  I dedicate this book to my immigrant grandparents, Ernest and Margaret Curtis (Cohn), and Guido and Rosina Tedeschi, who took the bold and enlightened decision in 1939 to come to Australia, fleeing Nazism, fascism, discrimination and persecution.

  ‘To cheapen the lives of any group of men, cheapens the lives of all men, even our own. This is a law of human psychology, or human nature. And it will not be repealed by our wishes, nor will it be merciful to our blindness.’

  William Pickens

  African-American orator, educator, journalist, essayist and son of liberated slaves

  ACKNOWLEDGEMENTS

  For a third time I must acknowledge the inspiration and encouragement of my friend and literary mentor, Alan Gold, who encouraged me to continue writing this book at a time when I was doubtful about its viability. His generosity with his time and his honesty with his comments are much appreciated, as is his and his wife, Eva’s, friendship and hospitality.

  I thank Judge Greg Woods QC of the District Court of New South Wales, who many years ago was my inspirational legal history lecturer at Sydney University Law School, and who in recent times discussed with me some of the more complex issues of legal history associated with this book.

  I pay tribute to Emeritus Professor Bruce Kercher of Macquarie University, who was responsible (with a team) for publishing online the records of decisions made by the superior courts of New South Wales during the colonial period.

  I thank Reverend Donald Richardson, the Dean of St Mary’s Cathedral in Sydney, for help in locating the Chalice of Saint Oliver Plunkett and giving me the opportunity to photograph it.

  I wish to acknowledge Peter Hodges of Tea Gardens and his sister, the late Christine Jones, a former police officer, who brought John Henry Fleming to my attention.

  I thank Cassie Mercer and Ben Mercer, respectively past and present editor and proprietor of the dynamic Australian magazine Inside History – for their enthusiasm for my historical writings over many years.

  I pay tribute to Cindy Jones, for her research assistance, her suggestions on my first draft, and her help in locating Archbishop Plunkett’s chalice. Her passion for the project gave me the confidence to believe that others would want to share our knowledge of the remarkable John Hubert Plunkett.

  I also wish to thank Peter FitzSimons for his generous comments about the book.

  I sincerely thank Aunty Noelene Briggs-Smith OAM and Kelvin Brown, both elders of the Gamilaroi nation, for reading my first draft and making some helpful suggestions.

  I thank Wayne Gleeson of the Legal Studies Association of New South Wales for his helpful comments on my first draft and I express my gratitude to him and his wife, Julie, for their continuing support of my three true-crime books.

  I thank my publishers, Simon & Schuster Australia, and in particular Larissa Edwards, Roberta Ivers, Anabel Pandiella and Anna O’Grady, for their encouragement and support.

  Finally, I thank my wife, Sharon, for her patience during the lengthy periods of our holidays and weekends when I was preoccupied with the story of John Hubert Plunkett and the Myall Creek murder trials.

  Mark Tedeschi AM QC

  PREFACE

  I cannot remember when I first became aware of John Hubert Plunkett, the Solicitor General and Attorney General of New South Wales from 1832 to 1856, but I do still recall my initial surprise that a man who had such a profound influence on the colony and was responsible for so many reforms and innovations is so unknown to society at large. That surprise did not dissipate over the years and at some stage I resolved that I would write an easily accessible version of his life story in an attempt to disseminate to the public his well-deserved reputation as one of Australia’s unsung heroes and possibly our most important advocate of human rights of all time.

  John Plunkett’s greatest challenge was to prosecute those responsible for the murders of twenty-eight Aboriginal men, women and children at Myall Creek in the New England district of northern New South Wales. Unusually for the times, there were two trials that arose from the massacre, and both provoked enormous controversy and hostility throughout the colony towards the prosecutor. The powerful forces of the landowning settlers were pitted against him, causing endless difficulties. While a considerable number of books and articles have referred to this massacre, to my knowledge there has not been any analysis of the difficult tactical and legal decisions that John Plunkett took in pursuing justice for those who had been murdered. As I explain in this book, the trials were more akin to modern-day war-crimes trials than to domestic murder trials, even though the concept of war crimes lay more than a hundred years in the future. Plunkett’s approach to these prosecutions was innovative and bold in equal measure. He faced massive difficulties in overcoming bigotry and vested interests and, in many respects he had both hands tied behind his back. The biggest hurdle was that despite the fact that there had been an eyewitness to the massacre, the law prevented that person from being called to give evidence in court. Plunkett spent the next twenty-five years trying to remedy this deficiency in the law.

  It is not possible to understand John Plunkett’s achievements in New South Wales or his conduct of the Myall Creek murder trials without knowing about his background in Ireland. His early years there came at a time of gradual emancipation for Catholics, however, as an Iris
h Catholic lawyer he still faced considerable discrimination and impediments under the law that he had sworn to uphold. This was a major reason he accepted a prominent government posting in New South Wales. By the time of his arrival, he was adamant that the colony should not experience the same issues of religious discrimination under the law that he and his Catholic colleagues had experienced in Ireland. His whole life can be seen as an attempt to create a society in which the law and all public institutions treated everyone equally.

  In attempting to bring to greater prominence the remarkable achievements of John Hubert Plunkett, I have referred to the writings of many other people whom I have listed in the bibliography, but none more so than the two authors of specialist books on Plunkett: John Molony and Tony Earls. Where I have inferred Plunkett’s thoughts, motives and emotions, they are entirely my own supposition, based upon the known facts and my own analysis of the man and his times.

  In the introduction to his book An Architect of Freedom: John Hubert Plunkett in New South Wales, 1832–1869, John Molony decried the fact that so few of Plunkett’s personal papers have survived, and stated his opinion that the personality of Plunkett did not emerge from the written records of his professional life. I disagree. In my view, John Plunkett is shown to be a man of many contradictions. He was single-minded and irascible; overly dedicated to his professional work; eclectic in his other interests; rooted in the blighted history of repression over the centuries of his native Ireland and his Catholic forebears; deeply spiritual, but with an abhorrence of sectarian bigotry, racial superiority or tribalism of any kind; outspoken in his views but socially shy; uninterested in all except a few personal connections, but loyal and respectful to those who shared his enlightened views; intensely proud of his family history; loving towards his wife, but rather dismissive of her concerns about their acceptance in Sydney’s high society; immune to critical public opinion, but empathetic to the sufferings of the community’s underdogs; eloquent when he needed to be, but stolid on most social occasions; and above all else, in possession of an immutable belief in the potency of the law as an instrument of justice and social change.

  In some instances I have inserted references in my text to my sources, but I have resisted the temptation to litter it with them, because I believe that they are an impediment to many readers. The bibliography is intended to provide additional reading for those who wish to make further enquiry.

  My use of the terms ‘blacks’ and ‘Aborigines’ instead of ‘Indigenous Australians’ is not out of ignorance and does not signify any disrespect, but rather is based on the fact that they were in common usage at the time of the murders. I have used the now generally accepted spelling for the ‘Gamilaroi’ nation throughout this book, even though ‘Kamilaroi’ has often been used in the past.

  Mark Tedeschi AM QC

  Sydney, 2016

  1

  VERDICT

  Western Court, Supreme Court, King Street, Sydney1

  16 November 1838

  ‘Not guilty!’

  The foreman of the jury repeated the same verdict eighty-eight times – representing eight murder charges against each of the eleven accused men in the dock. As each defendant heard the last of his acquittals, he whooped with delight and relief, and the defence counsel seated at the Bar table smirked with barely suppressed pride. The mass of people in the public gallery of the courtroom, representing every echelon of this white colonial society, all of whom were clearly partial to the defence camp, cheered and clapped as each defendant received his final verdict. The judge seemed unwilling to restrain these public expressions of glee. This case was no mere trifle. It was a matter of life and death, because in the event of a conviction the inevitable sentence would have been death by hanging. Only the man seated in the prosecutor’s chair remained unmoved by the infectious celebratory atmosphere. As each fresh set of verdicts was announced, it seemed to strike him like a blow, and each time he slumped imperceptibly lower in his chair, his eyes almost closed and his reddening face suffused with suppressed anger.

  For the prosecutor, these verdicts were like piercing arrows that struck at his very core. How could there be such manifest injustice in a supposedly civilised society that professed to be guided by Christian values and the principle of equality of all before the law? In his mind, the prosecution case had been irresistibly strong. How could twelve rational jurors unanimously turn their faces against the clear evidence that these eleven accused men – all convicts or former convicts who had been led by a free man who was not on trial – had been responsible for the most atrocious mass murder of at least twenty-eight defenceless men, women and children at Myall Creek, a tributary of the Big (Gwydir) River2 in the remote north of the colony, about 350 miles from Sydney and 200 miles from the nearest Police Magistrate’s office in Invermein (Scone)? Were the lives of the butchered deceased worth nothing, merely because they were Aboriginal? Did the jurors not think that the law should apply in the distant reaches of the colony just because there was frequent open warfare between the pastoralists and the ‘blacks’ they were attempting to displace? Did the jurors not know that the Scriptures taught that the life of any human being is as valuable as any other – no matter what their skin colour, religion or status in society? Had the jury been bought off by the rich so-called ‘squatters’ – those graziers whose illegal, self-declared landholdings beyond the established nineteen counties depended upon putting down ‘the black menace’ to promote their pastoral self-interests? Had he totally misjudged his own performance in court and failed to mount sufficiently cogent arguments during his case, even though he was universally acknowledged throughout the colony as the pre-eminent advocate of his day – reflecting his official position as the Attorney General of New South Wales? Had he misunderstood the values of the society he had served so faithfully for the previous six years since travelling from his native Ireland to take up the position of Solicitor General?

  As the final verdict was delivered and the hubbub from the back of the court died down, the Chief Justice, Sir James Dowling, who had presided over the trial, looked down at the prosecutor and calmly asked him in a rhetorical fashion:

  Mr Plunkett, is there any reason why these eleven men should not be released to return to their previous locations and occupations?

  John Hubert Plunkett slowly rose to his feet, stared into space a few yards ahead, seemingly ignoring the judge on the raised Bench in front of him, as well as his now haughty opponents at the Bar table to his side and the eleven jubilant defendants in the dock. In reality, he was deep in thought, wondering whether what he was contemplating was legally justified, or not. He realised that what he was about to say was probably the most important utterance of his whole career as a lawyer, and that he would be judged by society upon it. He paused for an undue length of time, before raising his face towards the Bench with a look of sudden revelation, as though he had only just become aware of the Chief Justice’s presence and question.

  Yes, your Honour. There is! These men should be remanded in custody. I intend to present a further indictment against them for murder at the next sittings of this honourable Court.

  Upon the prosecutor uttering these words, the court descended into pandemonium as the defendants, their lawyers and supporters railed with astonishment and dismay at the refusal of the prosecutor to accept the unequivocal verdicts that had just been delivered by the jury. The acquittals accorded with the overwhelming views of every stratum of this colonial society – that these eleven men had been engaged in the legitimate defence of white interests. What right did the prosecutor have to place these men on trial again for murder, when a jury of upright, propertied citizens had just absolved them? What principle of law enabled him to ignore an acquittal and seek a retrial on the same evidence? How presumptuous was it for an Irish Catholic lawyer in a predominantly Anglican British colony to preach his own brand of morality and to seek to manipulate the law to his own ends? Did he not care that this prosecution had, for prob
ably the first time in the fifty years since the colony’s establishment by Captain Arthur Phillip, united almost everyone in opposition – the free settlers, the pastoralists, the emancipated former convicts, the magistrates, the military, all but one of the newspapers, and even those who were still serving as convicts? Was he unaware of the depth of hostility towards those who were responsible for the prosecution of these eleven convicts for murdering Aboriginal men, women and children in the most remote and dangerous parts of the colony, where lawlessness prevailed, where possession of land by the squatters was tantamount to ownership, and where the threat of attack from the Indigenous ‘blacks’ was ever present? Did he not realise that the future prosperity and stability of the colony depended upon the expansion of grazing into these distant, fertile lands? It was one thing for the Colonial Office in London to issue edicts for the protection of the Indigenous population. It was something else for a government official in the colony to enforce them, when whites labouring in harsh and remote environments had met their deaths at the hands of the blacks, and when cattle and sheep belonging to the squatters had frequently been ‘rushed’ or butchered by them. Outside the established regions of the nineteen counties, neither the Governor, nor his minions, nor the military could provide any support, and the whites were reduced to protecting themselves by enforcing their own self-appointed rules and standards, both on the convicts who worked for them and on the blacks who lived in the bush and were always threatening to confront them. The danger of attacks against whites was so prevalent that even convict workers were permitted to carry weapons when venturing into the bush in these remote areas.

  * * *

  When John Plunkett announced that the eleven accused men in the dock of the Supreme Court would be put on trial again for the dreadful murders that had occurred earlier that year at Myall Creek, he realised that he was going against every tenet of the law that an acquittal by a jury was final and could not be re-litigated, as this would place the defendants in double jeopardy of conviction. However, he was so incensed at the unjustness of the verdicts in the face of overwhelming evidence of guilt, that he decided on the spur of the moment to put them on trial again and to work out the exact legal mechanism later. He saw this case as an opportunity to set a precedent: that the murder of Aborigines by whites would not go unpunished. He fully realised that his move to put the eleven men on trial again would be thoroughly unpopular and would be questioned by almost everyone in the colony, from the lowliest convict to the Governor, Sir George Gipps. However, at that precise moment he did not care about anything other than justice for the twenty-eight departed Aboriginal souls.