Murder at Myall Creek Read online

  In November 1833, he wrote a letter to the Secretary of State for the Colonies in London, Lord Stanley, complaining:

  Previous to the last Criminal Sessions, which commenced on the first of August last, His Excellency the Governor thought it necessary that I should relieve the Attorney General from that part of his duty which required his presence in court; and, having conveyed to me his desire to that effect, I attended in Court for the Attorney General every day during the entire of the Criminal Sessions, which lasted without intermission from the 1st of August to the 5th of September. I conducted during that time ninety one cases, and of that number there were 64 convictions, of which there were 26 capital convictions; and, notwithstanding their heavy and extraneous duty, not the least assistance was afforded to me in my own peculiar business, Viz., the civil department, by either the Attorney General or the Crown Solicitor, although there was much civil business to be transacted while the criminal court was sitting; And, when it was ended, the civil term commenced almost immediately.

  The Governor however, seeing the unreasonableness of requiring me to perform double duty, has caused directions to be given to the Attorney General and Crown Solicitor to relieve me from the mere office duties; but, up to this hour, neither of those Gentlemen relieved me from a single duty of my office.3

  So strapped were the government’s legal services that Plunkett was even required to prosecute a member of his own household staff. On Boxing Day 1833, while the Plunketts were out, two of their servants got into an argument, and one of them, Bryant Kyne, who was an assigned convict, shot the other, killing him. Realising the impropriety of prosecuting a member of his own staff, Plunkett arranged for his old Trinity College friend, Roger Therry, who was practising in Sydney as a private barrister, to conduct the trial. However, part-way through the case, Therry was required to appear in another court, and Plunkett was forced to step in. This raised an obvious conflict of interest, but there was no choice. Plunkett was adamant that he could put aside any feelings of sympathy for his servant and prosecute forcefully and fairly. There was an equally serious danger that in attempting to prove that he was not biased in favour of the accused, he would lean overly the other way. It was a situation that would not be tolerated today, but in the context of a colony with a dearth of prosecutors, society had to place its trust in Plunkett doing the right thing. Kyne was found guilty of murder, sentenced to death and hanged. As Plunkett had a moral objection to the assignment of convicts, he thereafter declined to take any convict staff, preferring to pay for domestic services.

  Plunkett repeatedly complained that he received little assistance from Kinchela and that he was forced to perform many of the tasks of the Crown Solicitor; however, his protests fell on deaf ears. Many thought that the workload would crush him – and it would have overcome most other men – but Plunkett survived and indeed excelled. He was later to complain that the four years that he was Solicitor General nearly broke him.4 Despite the amount of work, Plunkett performed it admirably and even had time to pursue other interests, winning the admiration of everyone, including Governor Bourke. Although Plunkett had a right of private practice, he rarely exercised it, seeing his public duties as having priority over any private clients. As a result, his official salary of £800 per year was virtually his sole income.

  Finally, in 1834, Crown Solicitor William Moore was dismissed and in early 1836, with the retirement of Kinchela, to no one’s surprise John Hubert Plunkett was appointed Attorney General of New South Wales. However, the position of Solicitor General was left vacant, so again he was forced to perform the work of both roles. Once again he flourished and gained universal respect for his ability, diligence, integrity and professionalism.

  * * *

  John Plunkett was a man of medium height, with a slight frame, hunched shoulders and a completely uninspiring countenance, so that many considered him ugly. He smiled infrequently and rarely appeared relaxed. His bulbous eyelids, coupled with puffy bags under his eyes, sometimes gave the impression that he was sleepy, but this was completely wide of the mark. His voice was raspy, and some viewed his advocacy as uninspiring, but nobody doubted his profound ability as a barrister. Above all else, he was a man of impeccable morality, who was incapable of deviating from the direction in which his conscience propelled him. Some viewed this as inflexibility, while others saw it as strength of purpose. While Plunkett was an intelligent, gifted and deeply religious man, filled with determination, conviction and boundless energy, he was not a man who easily encouraged friendship. In fact, apart from Governor Bourke and John McEncroe, Plunkett had few, if any, people in the colony he could call friends. It was not something that he missed or strove for – he had little time for personal connections with anyone, except his wife Maria, whom he loved dearly.

  John Plunkett inspired admiration from others, due to his diligence and irrepressible integrity, but his firm stance on a variety of issues often brought him into conflict with people. Rather than being a leader of men, he was very much a loner, who won respect through his superior intelligence, his fierce determination, his dedication to social causes, and his many professional achievements. Perhaps that was why he was such a superb prosecutor, because the job required fierce independence and quickness of decision making. While his deep religious convictions were well known, he made a point of never acting in a partial way in favour of his Church or fellow Catholics. Even those who were members of his Church found him difficult to warm to and sometimes inflexible in his views. He did not shy away from controversy or conflict, and in aspects of his life there were some people who disliked him intensely. He was a man who rarely let his guard down and, unlike countless other men at all levels of society, never succumbed to the vice of excessive drinking. He was socially shy and shunned most community celebrations, other than the annual St Patrick’s Day celebration, of which he was the enthusiastic organiser. It was only during that day’s activities that anyone would see a more relaxed John Plunkett who would give an inspiring speech about the homeland to rousing applause. Only at that day’s gatherings would he allow himself to play the fiddle in front of outsiders.

  Maria Plunkett was a completely different kind of person to her husband. She was beautiful and genteel, with a love of social contacts and an ability to connect with people from all walks of life. She had a deep social conscience and a keen intelligence, but her modesty often kept the latter hidden. As a woman of her times, she expected her husband and his work to take precedence in their lives, but when she agreed to marry her second cousin in the knowledge that he had already accepted the position of Solicitor General in distant New South Wales, she probably had no idea that they would spend the best part of their lives there or that her husband’s professional obligations would take up the vast bulk of his time, thereby restricting their social lives. Neither would she have known that his progressive views on many controversial topics would alienate many people in the colony whose company she would otherwise have enjoyed.

  * * *

  John Plunkett’s views on the rights of all men, no matter what their standing, financial status, education, faith or origins, clashed with contemporary attitudes in the colony. In particular, the wealthy, propertied landowners who had been born in the colony or had arrived as free men jealously guarded their exalted status and privileges under the law. They were known as the ‘exclusives’, and because of their wealth they were able to exert undue influence on the Governor, the newspapers, the military, and even the magistrates who held authority over the troopers – mounted police, who were often stockmen whose services were sequestered for individual ventures. The exclusives viewed themselves as the social and political elite, and resented any moves towards equality by those who had been convicts and then freed by completing their sentences or being granted tickets-of-leave or being pardoned. These former convicts were known as ‘emancipists’, because they had presumably been emancipated by their terms as prisoners and were now upright citizens. The non-convict populat
ion was deeply divided along these lines, and only a few of the exclusives were enlightened enough to press for the civil rights of emancipists. In the early years of the colony, only the exclusives were owners of large parcels of land, which gave them wealth, power and influence. However, as the number of emancipists grew, and as some of them began successfully engaging in businesses, mercantile activities and farming, their prosperity increased, and so did their demands for social and political recognition. The divisions in society became more pronounced.

  It was the wealthy landowners among the exclusives who were represented on three of the most important legal institutions in the colony: the Executive Council, the Legislative Council and civilian juries. The Executive Council, which was appointed by the Governor and included military and judicial officials, had, since 1825, fulfilled the role of the Governor’s cabinet and was the pre-eminent administrative organ of the colony. The Legislative Council had, since 1824, acted as the Governor’s source of advice on lawmaking. Initially constituted with five members appointed by the Governor, it grew in number until, by 1829, there were ten to fifteen. Many of the Council’s recommendations were thoroughly considered by Select Committees, consisting of various combinations of its members, which would research a topic and present a detailed report to the Governor and his Council.

  * * *

  Soon after John Plunkett’s arrival in the colony in 1832, he became acutely aware of two areas in which there was an urgent need for legal reform. His first concern was that all serious criminal trials were decided by juries comprised of seven military officers, which was quite different to anything he had encountered in England and Ireland. His second observation was that there was no opportunity for Aborigines to give evidence in the courts. Seared into his memory was the fate of his illustrious ancestor, Archbishop Oliver Plunkett, who had been convicted in not dissimilar circumstances to those operating in the colony: he had been convicted by a jury selected from a very limited section of society at a trial in which he had been deprived of the ability to call witnesses in his defence. Plunkett set himself the task of ameliorating these two iniquities in the colony.

  * * *

  Prior to 1824, criminal trials were decided by a panel of seven military officers. While this was an appropriate measure for a penal establishment, as the colony developed and the number of free men increased, it became increasingly inappropriate to use military officers to decide important criminal cases involving civilians. Between 1824 and 1828, a choice was available between a jury of military officers and a civilian jury consisting of those who were wealthy property owners and had never been convicts. However, in 1828 the New South Wales Constitution Act abolished civilian juries. Within a year of his arrival in 1832, John Plunkett drafted for Governor Bourke the Jury Trials Act of 1833, which granted accused persons in the Supreme Court and Quarter Sessions5 a choice of trial by a jury of twelve citizens or a panel of seven military officers. The Act enlarged the potential pool of jurors by setting the property qualifications lower than they had been before, to match the level set in England.6 In order to remove any doubt about whether or not this included the emancipists, Bourke approached the three Supreme Court judges for clarification.7 Their judgement, delivered on 9 August 1833,8 unequivocally declared that all emancipists were entitled to serve on juries in England, and hence also in New South Wales. One of the many legal restrictions on emancipists had been removed; however, the property qualifications still excluded many of them. All jurors had to be: male; between twenty-one and sixty years of age; British subjects; holding a personal estate of at least £300 or an income from land of at least £30 per annum; and not having been disqualified by the commission of certain serious crimes.

  The newspapers took predictable positions on the issue of civilian juries and the inclusion of emancipists. The conservative Sydney Herald was resolutely opposed to civilian jury trials in criminal cases, and constantly attacked the notion that former convicts could serve as jurors. The Australian, which was more progressive, was firmly in favour of both. John Plunkett frequently complained to the Supreme Court that many free settlers were not turning up for jury service because they refused to sit with emancipists. The Herald was in constant conflict with Plunkett on these issues. In 1838, Plunkett successfully moved to extend the operation of the 1833 Act for another five years in the face of the opinion of some colonists that ‘it was a judicial monstrosity which has never yet been paralleled in any other part of the world’. In 1839, the military jury panels were abolished.

  * * *

  John Plunkett was affronted by the fact that Aboriginal inhabitants could not give evidence in courts, because they were not permitted to take an oath to tell the truth. This was because their spiritual beliefs were so foreign to Europeans. It was considered that the native population did not understand the concept of a supreme being who imposed divine judgement – or at least the Judeo–Christian version – and that they had no belief in ‘a future state of reward and punishment’ – an accounting for one’s sins in the afterlife.9 Hence, it was thought that an oath to tell the truth had no meaning for them, because there would be no spiritual consequences for lying. If they could not take the oath, the law insisted that they could not give evidence. This had the effect that Aborigines could be brought into court as defendants, but they were unable to give evidence themselves or to call evidence from other Aboriginal people in their defence. Aborigines were subject to the law, because they were considered British subjects, but they had no ability to derive any real benefit or protection from it. This grossly offended John Plunkett’s sense of justice and fairness and his concept of equality before the law. He was only too aware from the history of his homeland that oaths could be misused to restrict rights, reduce opportunities and create grave injustices. He also knew of cases in New South Wales, some prosecuted by himself, in which Aboriginal defendants had been unable to call Indigenous witnesses to give evidence, and hence only one side of the story had been told.10 One of the most significant cases to highlight this deficiency in the law was prosecuted not by Plunkett, but by his fellow barrister Roger Therry.

  In May 1836, two Aboriginal men, Jack Congo Murrell and Bummaree, were put on trial for the murder of another Aboriginal man – one of the first cases of its kind.11 It was argued on behalf of Murrell and Bummaree that the colonial courts had no jurisdiction because the case concerned interrelationships, customs and practices between Aborigines, however, the full Supreme Court decided otherwise. Barrister Richard Windeyer was called to defend Murrell and Bummaree at the last moment, because another counsel had fallen ill. The accused wanted to assert that they had been attacked earlier by the deceased and that their customary law called for ‘pay back’, which exonerated them for the death. At the commencement of the trial, Murrell asked through his counsel for a jury of ‘blackfellows’, which, predictably, was denied. At the close of the prosecution case, Richard Windeyer submitted to the Chief Justice:

  The prisoners have nothing to say and have no witnesses to call, as the only witnesses they could call are Blacks like themselves, who cannot be sworn, as they do not believe in a future state.

  The Chief Justice replied that this point had not been decided, because it had never been raised before, and he declined to say whether or not the evidence of Aboriginal witnesses could be admitted as evidence until the question formally came before him. Mr Windeyer then indicated his intention to call an Aboriginal man named McGill to give evidence of the customary laws and practices of the Aborigines. The judge said he could not admit evidence of that kind because Aboriginal customary law could never be a defence to a charge under New South Wales law. He invited Mr Windeyer to call other witnesses as to the facts of the case, but Mr Windeyer did not call any.

  The Chief Justice, in his summing up to the jury, very fairly explained the disadvantages under which the Aboriginal accused men were being tried:

  This is a most important case, being the first of the sort ever brought before the
Supreme Court of New South Wales, and which will be a precedent for future proceedings in like cases; until recently it had been the general opinion of the Public and of one or two of the Judges, that the Aboriginal Blacks are not amenable to British law, excepting when the aggression was made on a white man; but the case has lately come under the consideration of the Judges, who have decided that by the Act of Parliament, in strict terms, the Court has jurisdiction of them, and they are amenable to British law. The Jury are legally in charge of the prisoner. If the prisoner, however, is amenable to British law, he is equally entitled to the protection of the law, and to all the advantages that the law gives to other subjects; and although it has been stated in evidence that the Blacks are generally considered as beasts of the forest, he, in the presence of the Almighty God declares, that he looks on them as human beings, having souls to be saved, and under the same divine protection as Europeans. With respect to their admission as witnesses, the law which requires them to answer for offences, allows them to defend themselves in the best way they can; and if witnesses of their own nation cannot be put on their oaths, yet evidence might be obtained from them in the best manner possible.

  The Chief Justice seemed to be hinting strongly that he would have allowed Aboriginal witnesses to give unsworn evidence of their direct observations of the offence, even though the law had not previously permitted this. After the judge completed his summing up, the jury retired for a few minutes, and returned with verdicts of not guilty.

  Despite the fact that the Chief Justice seemed to appreciate the disadvantages of Aboriginal defendants under the law, there was very little support in the colony to ameliorate this situation. John Plunkett was determined to correct it as soon as possible and to establish some way for Aborigines to have equal access to the courts, but he knew he faced major obstacles in convincing the Legislative Council to pass suitable laws. There was also a serious hurdle in that the laws of evidence in England insisted that an oath on the Bible had to be taken before a person could give evidence in court, so an amendment to change that law in the colony might well be struck down by the Colonial Office in London as repugnant to English law. The ineligibility of Aborigines to give evidence in the courts was to play a major role in John Plunkett’s most significant trial several years later.