Murder at Myall Creek Read online

  Mudie and Larnach were greatly angered by the allegations that had been made against them and the subsequent report, and prepared a joint protest, which they asked Governor Bourke to forward to the public servants in London who had decision-making powers in the colonies, but he refused. In September 1834, they printed their own response to the findings in Plunkett and Hely’s report, which they sent to the Colonial Office in London.12 At the same time, William Watt, the ticket-of-leave former convict employed as editor at the Sydney Gazette, attacked Mudie for his cruelty to his charges in an anonymous pamphlet entitled ‘Party Politics Exposed’. Mudie suspected that Roger Therry was behind the pamphlet, and retaliated in the newspapers against him and Watt. He also alleged that Governor Bourke’s undue favouritism towards convicts had rendered discipline almost impossible and been largely responsible for the uprising at Castle Forbes. The dispute between Mudie and the authorities was a major point of controversy in the colony for months, with opinions deeply divided according to social status – the emancipists and convicts sided with Bourke and the free landowners supported Mudie and Larnach.

  Disgusted with the way he had been treated, James Mudie sold Castle Forbes and sailed to England where, in 1837, he published The Felonry of New South Wales,13 a highly inflammatory, self-serving account of the state of the distant colony and its administration. In it he argued that Bourke’s leniency towards convicts had encouraged the rebellion at Castle Forbes, however, the publication was so extreme in its views that it was largely discounted by the Colonial Office. Mudie also gave evidence before the House of Commons Select Committee on Transportation, where he was questioned by the chairman, Sir William Molesworth, on floggings in the colony. Mudie made no attempt to conceal his reputation as a ‘flogger’, and with no sense of shame or embarrassment described the jubilant reaction of convicts to his removal from the bench of magistrates the previous year.14 The Molesworth report, in August 1838, relied heavily on the system of flogging in drawing an analogy between transportation and slavery.

  Mudie returned to Sydney in 1840 to find that he was universally loathed because of his caustic publication in England. Some little time after his return, he was publicly attacked with a horse whip by John Kinchela, the son of the former Attorney General, who had also been denigrated in The Felonry of New South Wales. Mudie sued Kinchela Jnr for assault and was awarded £50, which was immediately collected by contributions from members of the public in court – so unpopular was Mudie.15 Accepting his predicament, Mudie finally retired to England in 1842.

  The enquiry into conditions at Castle Forbes gave John Plunkett the opportunity to see the system of convict assignments to private masters at close quarters, and although he partly exonerated Mudie and Larnach, he became convinced that it was infused with abuse and injustice, and should be abolished. Too many masters had mistreated their convict labourers, and there were now a sufficient number of freed convicts to service the colony’s need for workers.

  * * *

  The other major case involving bushrangers that John Plunkett prosecuted in his early years in the colony was the trial in September 1834 of two convicts charged with the murder of Dr Robert Wardell, one of the best-known personalities in the colony.16 Once again, this case attracted the attention of every echelon of colonial society. Robert Wardell was an English barrister and London newspaper editor who had arrived in the colony in 1824 on the same ship as his fellow legal practitioner William Charles Wentworth. Wentworth had enticed Wardell to come to the colony to set up legal practice and to act as editor of the first independent newspaper in the colony. On them both being admitted as barristers in Sydney, they petitioned the Supreme Court to prevent attorneys (solicitors) from doing the advocacy work normally done by barristers, in accordance with the traditional roles that existed in England. Due to the shortage of qualified barristers in the colony, Chief Justice Francis Forbes refused the application; however, in 1829 he agreed to an order that divided the legal profession into two distinct categories – barristers and solicitors – in a form that has been maintained until today.17

  Soon after arriving in the colony, Wardell and Wentworth began publishing their own local newspaper, The Australian.18 The paper supported the emancipist causes, and pushed for an elected Legislative Council, the abolition of military juries and freedom of the Press. Wardell clashed repeatedly with the authoritarian Governor Darling, and was twice prosecuted by him for criminal libel, but on both occasions the jury were unable to agree. Darling was to say that Wardell and Wentworth:

  ‘keep the Court and the Bar by their effrontery equally in subjection’.

  Wardell was one of the most sought-after barristers in Sydney and he made a handsome living. Despite Darling’s ill feelings towards him, he was so highly regarded as a lawyer that he was sometimes retained as counsel for the government.

  By 1834, Robert Wardell was a wealthy man, due to his prowess as a lawyer and some prudent land acquisitions. His main estate was at Petersham, where he ran a successful farm with wheat and timber and on which he had constructed a home called Sara Dell. On Sunday, 7 September at about 1pm he left his house on his distinctive white horse to ride around his estate. About three-quarters of a mile from Sara Dell, in bush near to the Cook’s River, he spotted a rudimentary bark hut, from which emerged three white men: John Jenkins, Thomas Tattersdale and eighteen-year-old Emanuel Brace, who were convicts unlawfully at large. Jenkins, the leader of the three, had escaped from an iron-gang working on public roads and buildings in the Georges River district. He had been transported after being convicted of fifteen offences in England and had already been punished twice for misconduct in New South Wales. The three convicts had committed several robberies and thefts in an attempt to survive in the bush around Petersham, which was then on the outskirts of Sydney.19 Upon Wardell unexpectedly discovering these three escaped convicts, he urged them to give themselves up, an idea that was vigorously opposed by Jenkins. Jenkins then produced a musket that he presented at Wardell. Tattersdale remonstrated with Jenkins, suggesting that he should not harm the man who had discovered them. There was then a verbal altercation between Wardell and Jenkins during which Jenkins shot Wardell. The shot caused Wardell’s horse to bolt, but he managed to cling onto it until, weak from his wound, he fell to the ground, crawled to a tree trunk, rested against it, and died.

  Wardell’s disappearance was noted on the Sunday night after his horse returned home, but it was not until early the following morning that a search party was organised, led by Chief Magistrate Colonel Wilson and containing a large number of ‘gentlemen from Sydney’. Wardell’s disappearance caused great consternation, because he was a well-known identity throughout society. His body was found later that day, causing a wave of grief in the community. The three convicts were arrested nearly a week later. The youngest of them, Emanuel Brace, immediately confessed to the Chief Magistrate and offered to become an ‘approver’ (informer) against the others in return for immunity from prosecution. His evidence was critical to the prosecution case against the remaining two.

  John Plunkett realised that the success of the prosecution depended entirely upon the informer giving evidence, and he was most concerned that the informer might be threatened or harmed, such that his evidence would be lost. He therefore approached the Supreme Court on Saturday, 20 September 1834 to request an urgent hearing of the trial the following week. The Court could see no justification for such a speedy hearing, and so Plunkett had to wait until 7 November for the trial to commence.

  On the morning of the trial, the Chief Justice enquired who was representing the two accused men, and a Mr Kinsman announced that he was. Mr Kinsman had until a short time before been an attorney (solicitor), so Plunkett objected to him representing the accused, but Mr Kinsman assured the Chief Justice that he had recently been admitted as a barrister. So little did Plunkett think of Mr Kinsman that he stated in open court that after the trial he would ask for the man’s name to be removed from the roll of barr
isters.

  Emanuel Brace was the star witness. His account of the incident was this:

  I heard the sound of a horse’s feet, and looking up to see who it was, I saw a gentleman on a white horse, who asked me who I was, but I made no answer; Jenkins looked up, and on receiving the same question answered, ‘I am a man’; he asked, who are the other two? when Jenkins answered, they are men; the gentleman then stooped a little from his horse, and took up a small stick which was leaning against a tree, and flourished it over his head as if beckoning for assistance; he said, you are only three poor run-aways, you had better come along with me; he pranced about the hut, and Jenkins dodged him and took up a rock-stone and told him to go away, but he would not; I heard Jenkins whisper to Tattersdale, to go and fetch the musket, when I said, we need not do that, it would be better to go and receive fifty lashes than to risk our lives; Tattersdale moved towards the bush and got the musket, when Jenkins took it out of his hands, which, on the gentleman observing, he said, Oh, for God’s sake don’t do that, Jenkins answered – By G-d I will! The horse was prancing back and Jenkins proceeded up to the gentleman, presented the piece and fired. When the gentleman said ‘Oh dear, I’m killed’, the horse turned short round, and started off at full speed, and went a great distance, over some rocks.

  In the defence case, Jenkins wanted to call three character witnesses, but on their names being called outside the court, none of them were present. Jenkins then called a most unsatisfactory alibi witness, convict William Smith. It is not clear from the trial transcript whether Mr Kinsman had left the court, but Jenkins himself questioned the witness. Jenkins asked Smith whether he had seen Jenkins and Brace together on 7 September, the day of the murder. This interchange then took place:

  Smith: I heard of the murder of Dr Wardell. I don’t remember the day it took place. I don’t remember the 7th of September. I never remember seeing you and Brace together on that day or any other day.

  Jenkins: Come now Bill, you have nothing to be afraid of. Speak up like a man. No harm can come to you. Was not I and Brace in your company together on that day?

  Smith: I never saw Brace before the present time in my life. I never saw you and Brace together. You were never in my company.

  Jenkins: (with the most fiend-like expression of countenance) I see it’s no use to ask him any further questions. He’s afraid to speak the truth on my behalf. No witnesses present. No one can come forward for Jenkins. Never mind, I can do it like a dog.20

  The Chief Justice in his summing up to the jury explained how the evidence of the informer, who was also an accomplice, was corroborated by many other witnesses, as required by law. Both Jenkins and Tattersdale were found guilty. The prisoners were then asked in the traditional way whether they had anything to say before sentence (of death) would be pronounced. Jenkins stood up and loudly proclaimed that he had a good deal to say on the subject. He considered that he had not had a fair trial, stating that:

  That bloody old woman [defence counsel, Mr Kinsman] has been shoved upon us for the purpose of leading us to our destruction. I could have conducted my own case with a better chance of justice. The Jury were not out a second, when they brought in guilty; but I did not care a bloody damn for either Judge or Jury, or the whole bloody Court, whom I would shoot with the greatest pleasure if I had my gun here.21

  He then struck the dock with his hand in an infuriated fashion.

  Tattersdale, on the other hand, while expressing his innocence of the crime, because he had urged Jenkins not to shoot Wardell, begged to be allowed a few days’ respite of the sentence to make his peace with God. His Honour refused the application, saying that he did not have the discretion to delay the execution and fervently exhorted him to make the best use of his few remaining hours.

  His Honour then passed sentence of death on them both and had scarcely finished when Jenkins turned towards Tattersdale and ferociously lunged at him, striking him two violent blows. This took everyone in court by surprise, and it was several moments before the police rushed into the dock and with much difficulty secured Jenkins. The newspapers reported Jenkins’ extraordinary behaviour in great detail.

  At the gallows on 10 November 1834, in the presence of assembled felons and official witnesses, Jenkins ‘ascended the ladder with the greatest expedition, and on arriving on the scaffold went over to one of the ropes suspended from the fatal beam and struck it with his hand in a playful manner’. Jenkins then addressed those in the yard, telling them that he had informed the Governor of the gaol of details of other offences he had committed, so that no one else would be blamed for them, and then gave this remarkable farewell to the assembled crowd:

  Well, good bye my lads, I have not time to say much to you; I acknowledge I shot the Doctor, but it was not for gain, it was for the sake of my fellow prisoners because he was a tyrant. And I have one thing to recommend you as a friend, if any of you take to the bush, shoot every tyrant you come across, and there are several now in the yard who ought to be served so.22

  * * *

  Governor Sir Richard Bourke left Sydney in December 1837, having sent his resignation to London earlier that year. John Plunkett was deeply sorry to lose not only a Governor whom he greatly respected, but also a friend. Upon the arrival of the new Governor, Sir George Gipps, in early 1838, the relationship with his Attorney General quickly became cordial and mutually respectful, as the Governor, like his predecessor, had a benevolent attitude towards the underdogs of this society – the convicts, the emancipists and the Aborigines.

  The new Governor was keen to restrict and eventually abolish the convict assignment system. In this regard, he had the overwhelming support of his Attorney General. One of Gipps’s first acts on taking up his appointment was to prohibit the assignment of convicts for domestic service in homes in Sydney and the larger country towns. Over the next three years, assignments were progressively abolished, so that the last assignments were in 1841. From 1840 to 1843 the number of assigned convicts shrank from 22 000 to just over 4 000. This created improved employment prospects for free settlers and emancipated convicts, and was an important stepping stone in the lengthy process of abolishing transportation and transforming the Colony from a penal settlement into a self-governing society of free men and women.

  5

  CHURCH AND STATE

  By 1836, the free citizenry of New South Wales outnumbered convicts by 49 300 to 27 800. Sydney was a city of 18 000 people. In that year, upon his appointment as Attorney General, John Hubert Plunkett became a member of the Legislative Council. In this capacity he was given opportunities to introduce reforms that would shape the colony and its legal structures for decades to come, and indeed have a lasting effect on the democratic institutions and conventions that were established when the six Australian colonies federated into a nation more than sixty years later. As Attorney General and a member of the Council, Plunkett had the opportunity to fight for the civil rights and egalitarian conditions that he so strongly believed in as he strove to create a society that avoided the discrimination and impediments that had plagued his native Ireland for centuries. One of his first projects as a member of the Legislative Council was to be his most enduring legacy.

  When the First Fleeters landed on the shores of what would become New South Wales in 1788, they brought with them the laws of England and the institutions of British government and justice. This included both British statutory law and the judge-made common law.1 Over time, local laws were introduced that differed from the equivalent English laws, and there was an uneasy balance between them based on two legal principles: the ‘doctrine of paramount force’ and the ‘doctrine of repugnancy’.2 The doctrine of paramount force provided that any English Act was also in force in the colony, depending upon the local circumstances being appropriately similar. This allowed for different laws to be passed in the colony to account for divergent circumstances to the mother country. For example, in England a person convicted of a felony had no standing in the courts
. In the colony, there were so many convicts that this was impossible to accommodate, and so within six months of the arrival of the First Fleet the principle was established that convicts had access to the local courts. Two convicts successfully sued the master of the ship that had brought them to the colony for the loss of their baggage on the voyage.3 This marked a radical departure from the laws of England because of the differing circumstances in the colony.

  The second principle, the doctrine of repugnancy, stated that colonial legislation was void if it contradicted the equivalent English law. Any law enacted in the colony had to be remitted to London for vetting and was liable to be rejected if considered repugnant to English law and if the conditions in the colony did not warrant a different approach. The Colonial Office in London therefore had an effective power of veto on any laws passed in New South Wales.

  The contradiction between these two doctrines is self-evident and the local courts were kept busy trying to balance them. The question of whether conditions in the colony were sufficiently dissimilar to warrant laws divergent from the mother country was sometimes difficult to determine.

  Because New South Wales was an outpost of the British Empire, all the institutions of government in the homeland were adopted to the extent that they were applicable. The most fundamental institution of all was the Monarchy, under which came all other institutions of government. The English Monarch represented the source not only of all temporal – secular – power, but also all religious authority. The King or Queen of England was not only the head of state of Great Britain and Ireland, but also the head of the Church of England, which was the official religion of state. There was no division between church and state in England, which is a situation that still exists in form today, where the Queen is both the Monarch and the head of the Church of England. At the founding of New South Wales (and the other five Australian colonies), the King’s status as head of state and head of the official state religion was automatically transferred to the colony.