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Legal History |
LIBBY CONNORS[*]
When the 1840s diary of the young barrister Thomas Callaghan was published, Justice Keith Mason made a note in the foreword about the inward preoccupations of the bar:
The forensic activity recorded by Callaghan is usually that of the lawyers, as if the main events were the spats between counsel or instances of judicial rudeness. Little was perceived or chronicled about the human dramas of the litigants, some of whom were facing capital charges.[1]
The death penalty certainly loomed large at the sittings of the supreme court on circuit to Moreton Bay in the 1850s where no fewer than 27 cases involving Indigenous men and women as defendants many of whom faced the death penalty were presented. Interracial conflict in the north was played out not only on the geographic frontier but also a cultural frontier, one that relied on police operations and court rooms. Legal processes in New South Wales had undergone significant reform since the chief justiceship of Francis Forbes, but the non-admission of Aboriginal evidence, the wide ambit of the law of aiding and abetting and the lack of criminal appeal processes even in cases of capital punishment made the law’s application unreliable in frontier cases in the 1850s. Hanging juries added to its apparent uncertainty and make the role of judges and the bar in these proceedings all the more important to the social historian. An understanding of the court’s operation at Moreton Bay thus requires an understanding of not only the political and legal context of the era but also the social relations and preoccupations of its main players.
This paper explores only one small aspect of that story but one which draws on the biography of Sir Roger Therry, judge of the supreme court of New South Wales from 1846 to 1859, to reconstruct some of the tensions of the courtroom in an important capital trial in 1854. It outlines the operation of the circuit courts at Brisbane and three frontier attacks which resulted in the arrest and trial of several young Indigenous men. Therry was the presiding judge in the trials of three of these men at three separate assizes; they were R v Mickaloe for the murders of William Boller and William Waller in November 1851, R v Mickie for the murder of Mary Shannon in May 1853 and R v Dundalli for the murders of William Boller and Andrew Gregor in November 1854. Roger Therry’s personal background is surveyed to try to resolve the discrepancies in the sentences he handed down in these cases before drawing some conclusions about the contribution of these events to contemporary studies of the frontier.
After almost a decade of complaints about the administration of justice in the north, the New South Wales circuit system was extended to include Brisbane in 1850. One of the supreme court judges and crown law officers or their representatives travelled via steamer to the northern town each May and November from 1850 to 1855. In 1856 the pressure of business forced three criminal sittings in January, May and November and finally in 1857 a resident judge, Samuel Milford, was appointed.[2]
The New South Wales country circuits were not comfortable; the Brisbane leg often took up more time than had been scheduled owing to storms and other weather conditions delaying the steamer’s passage.[3] The range of accommodation at Brisbane was limited. It was also deemed inappropriate for the judge to take hotel accommodation with other members of the bar and on the first circuit Judge Therry and Attorney General Plunkett were forced to share a government cottage in uncomfortable circumstances.[4]
The court room too was rudimentary; the court sat in the top floor of the old convict barracks which remained the town’s most imposing building and dominated the southern end of Queen Street. The town lockup and the lockup keeper’s quarters were uncomfortably close; they were on the ground floor immediately below the judge’s room and court. In the unreformed prison system of 1850s New South Wales gaolers and lockup keepers still frequently lived on-site in close proximity to their charges. In 1858 Judge Milford requested substantial modifications to the judge’s chamber and the lockup below as the noise from the lockup keeper’s nursery continually disturbed him.[5]
The Brisbane circuit was also not very lucrative. Young barrister, Thomas Callaghan, kept a record of his fees and costs when on circuit at Maitland, Berrima and Parramatta court sittings in the 1840s for at times he only just made a profit.[6] There was little competition for briefs at Brisbane. Judge Therry allowed solicitors to appear at the first circuit and they were again allowed in November 1852 owing to the absence of barristers in private practice. The only two members of the Sydney Bar to appear with any regularity were William Purefoy and the new colonial arrival Peter Faucett.[7] Purefoy was a senior member of the bar by this stage[8] and Faucett later became solicitor-general and judge of the supreme court of New South Wales.[9] For the crown, the attorney general, J.H. Plunkett, and the criminal crown solicitor, John Moore Dillon were also frequently in attendance, while the three judges of the supreme court of New South Wales, Chief Justice Alfred Stephen, John Dickinson and Roger Therry appeared in rotation.[10]
Although criminal trials at the Moreton Bay Circuit in the 1850s differed in important ways from modern criminal trials, the fundamental principles of criminal justice such as the presumption of innocence, testing of circumstantial evidence and requiring proof beyond reasonable doubt had been successfully incorporated by the judges of New South Wales since 1824.[11] Therry himself had used his address at the opening of the first circuit court in Brisbane in May 1850 to instruct the public and jurors on ‘a few of the leading principles of evidence’ and to warn that ‘conscientious judgment must be exercised ... on the evidence, and the evidence only, adduced on the trial.’[12] The judge regarded his address as of such significance that on his return to Sydney he had it published.[13]
It was an important statement in a district still contending with frontier violence. From 1845 to 1847 there were several incidents which sent shockwaves through the white community; three in particular would be re-visited by the supreme court in the 1850s at sittings over which Therry presided. The first took place on a March evening in 1845 when a group of Ningy Ningy men said to have been led by Dundalli speared the German missionary, John Hausmann, then ransacked and burnt his hut in an isolated area about 38 kilometres north of Brisbane. The injured Hausmann survived after a fearful night journey to the Nundah mission settlement through the bush. This was followed by a more audacious morning assault on a station on the Upper Caboolture River on 18 October 1846; men from several different traditional owner groups killed the station owner, Andrew Gregor and his female servant, Mary Shannon; Mrs Shannon’s three children, all under six years of age, were unmolested, her husband who had been some distance from the station buildings heard one of his daughters scream and turned to see ‘a great number of Blacks’ coming from the creek; he fled on foot in the direction of the neighbouring station, followed by a young, part-Aboriginal boy of 10 or 11 years of age who had also been working more than a 100 yards away. Then, on 10 September 1847, some of the men who were said to have participated in the Gregor station raid attacked a party of three sawyers killing one of the men instantly, fatally wounding another and injuring a third who survived and became the only witness in the subsequent trials.
The significance of these attacks in customary law and their meaning to the traditional owner groups have been explored elsewhere[14] but it is important to note that not all Europeans at the time were convinced of their criminal culpability. Stephen Simpson, the Commissioner of Crown Lands, Protector of Aborigines during Governor Gipps’ term and magistrate for the district of Moreton Bay, was reluctant to lay full blame on the traditional owners for these acts of aggression. In his official report for 1846, he recorded that he had warned Mr Gregor about the insecurity of his station, on one occasion ‘having found the Station in charge of a single hutkeeper ... fortunately the Aborigines of these parts are by no means of sanguinary habits, or the loss of life would be much greater’.[15] His response to the 1847 attack was even less condemnatory; his official report for that year noted that ‘as they were sawyers, a class of men but too apt to give provocation, it is difficult to say who may have been the aggressors’.[16]
The community’s reaction, however, was inflamed by a new arrival in the district, the Moreton Bay Courier. Its first edition appeared just four months before the Gregor attack in June 1846. The Courier sought to ensure its popularity by making itself ‘the scourge of the black population’ and used reports of racial attacks to build a sense of community among the whites of the district. To this end the new paper frequently found itself at odds with Sydney journals such as the Sydney Morning Herald and the Australian which drew attention to its one-sided reporting of interracial violence in the district in the years 1846-47.[17] Soon after the Gregor attack the Courier had called for reprisals as ‘life and property are entirely at the mercy of ruthless savages, who require to be promptly checked’. It repeated its demand for retribution a few weeks later euphemistically labelling it as ‘Anglo-Saxon justice’.[18] By 1849 it was using ‘bush opinion’ to argue against the application of the law to the Indigenous population on the grounds that ‘it is well known ... that a systematic favouritism is extended to the aboriginal natives, at the expense of the white settlers and their men.’[19]
The presence of the supreme court was thus an important measure to re-assert the ideology of law on the northern frontier and a trained and experienced judiciary a potentially powerful check on hanging juries comprised of local whites. Justice Therry appears eminently suitable for the task. His class background and his formal training marked him as someone above the immediate concerns of the northern colonists. No book length biography of Sir Roger Therry has been written, but Professor John Bennett’s detailed introduction to the 1974 facsimile edition of Therry’s Reminiscences of Thirty Years Residence in New South Wales and Victoria provides assessments of Therry from many of his contemporaries. Although the biographer of John Hubert Plunkett notes that no one in the colony could match the Attorney General’s pedigree of Irish aristocracy, Bennett regards Therry’s family background highly. The Australian Dictionary of Biography entry records Edmund Burke as his father’s ‘guardian’; Bennett explains that his role was as a Protestant patron to preserve the family’s claim to their ancestral lands which could have been denied to them as Catholics. It was Burke too who encouraged Roger Therry’s father to go into the legal profession and supported his involvement in the campaign for rights for Catholics.[20]
Born in 1800, Roger was John and Jane Therry’s third son and it seems he learnt well the importance of an influential patron and of the campaign for Catholic legal rights. At Trinity College Dublin he studied with other young Irish Catholics inspired by the political campaign for Catholic emancipation. Among this student network was John Plunkett, a gifted future lawyer who would follow Therry to New South Wales where they would both play leading roles not only in the colony’s legal system but in advocacy for legal rights.
Roger did not complete his degree; instead he went to London to take up law where he was called to the Bar in 1823.[21] Bennett says that there is no evidence that he actually practised as he was earning his income from writing law reports for the English press. He publicly contributed to the campaign for Catholic emancipation when he published A Letter to the Right Hon. George Canning on the Present State of the Catholic Question in 1826. Bennett is generous in his assessment of Therry’s political activism in this period. ‘Therry could,’ he writes, ‘with some satisfaction, regard himself as a significant contributor – and at his age no less significant – to the reforms attained under the Roman Catholic Relief Act 1829.’[22] His efforts bore fruit not only as a Catholic but for him personally. In this period he imitated his father in winning for himself an influential patron although it was to be a short-lived relationship. In 1827 Prime Minister George Canning appointed him as his private secretary to assist him in writing and editing his speeches for publication. Canning apparently thought highly of Therry however he died in office in August that year, preventing the bestowal of further favours on his young protégé. To complete the collection of the Prime Minister’s speeches Therry sought help from Canning’s colleague, William Huskisson. As Secretary of State for the Colonies it was Huskisson who secured Roger Therry’s appointment as Commissioner of the Court of Requests at New South Wales in 1829.[23]
In New South Wales Therry was permitted to take private work as well as fulfilling his commissionership duties. Plunkett who arrived in 1832 to fill the position of Solicitor General often passed him private cases but he was also called on at times to do crown work owing to the excessive load that fell to the Attorney General’s office.[24] In 1833 at the request of the Catholic chaplain, Therry took the defence of the runaway convicts from Major Mudie’s infamous estate. Although the legal defence was unsuccessful, an anonymous pamphlet which attacked the inhumane attitudes of Mudie’s supporters appeared the following year. [25] Mudie believed Therry was the author and attacked him relentlessly in his book, The Felonry of New South Wales.[26] Therry’s support for Governor Bourke’s reforms to limit the excessive number of floggings ordered by magistrates made him unpopular with the Exclusive pastoral interest and was a factor contributing to his loss, by one vote, in his first stand for public office, the election for Chairman of Quarter Sessions, in 1837.[27]
Therry also risked colonial opinion by continuing to publicly defend his religion and churchmen, leading to struggles with Anglican Archdeacon Broughton. As early as 1834 his religious advocacy had earned him a reprimand from the Colonial Office[28] and by 1837 in the midst of contestation over the Quarter Sessions the Sydney Herald denounced him as ‘a political and religious partizan [sic]’.[29]
These religious and political struggles did not alienate him from his social network. Therry and his wife naturally shared social as well as professional relations with the Plunketts as well as with the small circle of educated Catholics in the colony. One of the more important members of this set was the influential newspaper editor William Augustine Duncan. Although a Scot, Duncan as a Catholic-convert and radical journalist won the support of the Catholic clergy and emancipist Irish and as a result was appointed editor of the Australasian Chronicle soon after his arrival in the colony.[30] Among the causes these three leading Catholic opinion-makers espoused were Indigenous legal rights. Therry assisted Plunkett with the prosecution of the second Myall Creek trial in 1838 and wrote of these horrific events with compassion in his Reminiscences.[31] Duncan, in his later career as a civil servant and magistrate at Brisbane, took a strong stand on the rights of traditional owners in cases before the lower courts.[32] Plunkett in his official capacity pressed repeatedly for legislation to allow Aboriginal evidence and Therry too spoke publicly and passionately in support of the issue.[33]
Rather than retreat from colonial political battles, in 1843 Therry decided to stand in the first ever elections for the partly-elected legislative council. His participation reveals three important character traits relevant to his future career as supreme court judge. Having weathered the storm of public opinion over convict and Catholic rights in the 1830s, Therry showed he could just as readily accommodate the views of the old colonial elite. The solicitor, George Allen, described Therry as ‘a government officer and a thorough Whig in his principles’. However his nomination for the seat of Camden in 1843 was supported by the Macarthur family who labelled him as ‘of liberal conservative principles, (that is a supporter of Government in all its measures so long as they have for their object the general good of the governed), and as an enemy to all rash innovations’.[34] It was a shock to William Duncan who had used his paper to satirise the ‘landed oligarchs’ and their defenders. One of his headlines in 1841 had angrily demanded ‘Shall This Colony Be Completely Macarthurised?’[35] Duncan refused to change his political colours even for a Catholic as prominent as Therry. The young Catholic barrister, Thomas Callaghan, sought to mediate between the two. He recorded his discussions with Duncan at some length:
I said that I thought Therry had acted indiscreetly in mixing himself up so much with the Macarthurs, but that I believed his indiscretion could only injure himself alone. Duncan said that he had not deserted Therry but that Therry and the Catholics of Cumberland had deserted him ... He mentioned the subserviency of Therry’s character but I contended that this was confined to his manner and was not in his real nature and I dwelt upon the importance of securing Therry’s election ... (He charged Therry with great subserviency).[36]
Therry’s political enemies had a field day. The Colonial Observer and the Satirist pilloried him.[37] The most scathing assessment came from the political warhorse, John Dunmore Lang, who combined a slur of sycophancy with that of ambition: ‘He was a Government officer, and, even as such, was notoriously a mere Vicar of Bray, who always swore by the man that was in, as the readiest way of getting in farther himself.’[38]
Perhaps more important than Therry’s ability to swing on major issues of the day was his ready exercise of influence to remove Duncan. In less than a fortnight after Callaghan’s failed mediation the former bookseller and radical journalist was dismissed from the editorship of the Australasian Chronicle and as he explained to Thomas when he passed him on the streets of Sydney, it was Therry who had had him sacked.[39] It was harsh retribution for a man of Duncan’s standing; he continued to promote the working man’s cause in a new paper, the Weekly Register, but by December 1845 he was bankrupt and in 1846 Governor Gipps rewarded him for his anti-squatter political stands by giving him the post of Sub-Collector of Customs at Moreton Bay. In his diary Callaghan often bemoaned Therry’s ungenerosity of spirit towards him, contrasting Roger with the friendliness and kindness of his wife and with the absent John Plunkett. ‘How differently the Attorney-General would have acted towards me in this matter!’ he lamented as he waited to hear from Therry as to whether he was to receive a government appointment.[40] Therry had withstood many personal attacks during his public career but showed that he could also act ruthlessly.
Among the myriad personal anecdotes sprinkled through Callaghan’s diary there is also a telling one about Therry’s reaction to a professional sneer in the courtroom from barristers a’Beckett and Windeyer. Erroneously imagining the laughter came from Callaghan, Therry stopped mid-argument and requested ‘that I should restrain my risibility’.[41] The dignity of the court and of his professional behaviour weighed heavily on Therry and he guarded them both fiercely. His successful election to the seat of Camden meant that Therry was present for the elected members’ attack on the ‘Schedules’, a political showdown with Governor Gipps in October 1843 in which the anti-government MPs queried the salary of every officer of the crown including the governor’s. They negatively assessed the contributions of even the most minor officials before starting on the supreme court and the attorney-general. The humiliation was too much for Roger Therry who gave one of his most powerful political speeches in response to Richard Windeyer’s attack:
Did he want New South Wales to follow the American example, ‘where Judges went into Court with cigars in their mouths, and in shirt sleeves’, or took their place on the bench in Tweed? Would he dispense altogether with the wig and gown? ... There was more, all of it leading to Therry’s conclusion that [Windeyer] and his tribe ‘would cripple the administration of justice in some of its most important departments’ if ever they got their way.[42]
The dignity of the court and its officers was sacrosanct.
Therry finally achieved his goal of appointment to the Supreme Court of New South Wales on 26 February 1846.[43] He had put himself forward on a number of occasions.[44] He and Plunkett had both been unfairly overlooked because of their religion in the controversy over the replacement of the chief and third justices of the supreme court in 1844,[45] but Therry eventually won appointment as resident judge at Port Phillip on 31 January 1845,[46] resigning his seat in the Legislative Council at the same time.[47] It was a brief sojourn before taking his place on the New South Wales bench the following year.
The opening of the first circuit court at Moreton Bay fell to Therry in May 1850 and it immediately presented both the attorney-general and the judge with an opportunity to comment on the applicability of the law in frontier situations. Three soldiers of the Eleventh Regiment were tried for shooting at the local Turrbal people at this sitting. The solicitor given leave to represent the soldiers complained in his address that ‘the continued prosecutions of whites, while the blacks were not interfered with, was calculated to give confidence to the latter in their depredations’. Plunkett who had already given his address was provoked into a reply which emphasised legal precedents. Therry however was blunt and to the point. He used the occasion to remind the Brisbane audience that he himself had been responsible for leading the prosecution against two Indigenous men who had been publicly hanged in the town in 1841.[48] It was an important counterpoint for this northern audience given the colonial preoccupation with the Myall Creek trials[49] and the important roles Plunkett and Therry had played in them.
Therry’s next appearance in Brisbane was at the circuit court sittings in November 1851 where he presided over the first of the supreme court prosecutions arising from the Gregor attack to be heard locally.[50] Getting the defendant, Mickaloe, before the court had proved to be difficult. Two local officials, William Duncan and John Ferriter, had taken the bench for the committal of ‘Jemmy Parson alias Paddy alias Mickaloi’, with the hearings spread over a fortnight in August 1851. Duncan infuriated local opinion by refusing to commit Mickaloe for the Gregor station attack instead insisting that it was necessary to await advice from the attorney-general. The problem was identifying the defendant who was known by six different names according to witnesses at the committal hearing. The confusion over identity was compounded by Ralph Barrow, the young boy who had fled the station and was now about 15 or 16 years old, as he gave evidence which was inconsistent with that he had given at the inquest in 1846. When the bench questioned him on some of these points, he contradicted earlier statements and began to cry. Duncan, reacting to the pressure that had been applied to the youth by a white community excessively eager for a committal, eventually sentenced the boy to a week in gaol for prevarication. The controversy did not end there. The district’s renowned interpreter, James Davis, who as a runaway convict had lived with the Ginginburra for 14 years, refused to interpret unless his expenses were paid and also found himself in gaol for contempt of court. When the 10 year old daughter of Mrs Shannon and the interpreter Tom Petrie both denied the defendant was the Jemmy Parsons named at the original Gregor inquest, it appeared unlikely that the attorney-general would proceed with any trial of Mickaloe for murder.[51] The Moreton Bay Courier which had editorialised against the bench over these proceedings was triumphant when an illiterate, ex-convict sawyer, James Smith, then asked to see the prisoner and declared that he had been present at the attack on the sawyers in 1847.[52] Dillon as crown prosecutor decided to put Mickaloe in the dock for the 1847 murders but the question of identity had still not been satisfactorily resolved. At the November assizes William Purefoy took the defence and
addressed the jury for the prisoner, commenting forcibly on the probability that arose from the demeanour of the prisoner, and the testimony of Davis, that Smith might be mistaken in the identity of the prisoner.
Although Therry ‘summed up with great care’, the jury took only ‘a few minutes’ to return with a verdict of guilty.[53]
Given the attention that had been drawn to the contradictory evidence, it is not surprising that Therry was concerned about young Mickaloe’s identity. At the end of the sittings he requested the police magistrate to make further inquiries to provide him with more definite evidence about the young Indigenous man. As this was not forthcoming his advice to the Executive Council when it met to consider the awarding of the capital punishment in December 1851 was that Mickaloe should be reprieved but that
the prisoner is to be detained in the Brisbane Gaol ... three months and then sent quietly to Wide Bay to join his own Tribe with an intimation that his life would be endangered if he returns to the neighbourhood of Brisbane.[54]
Therry’s solution appeared a resourceful one; it had the benefit of getting Mickaloe out of the vicinity of Brisbane to placate local white feeling but also to instil his tribe with fear and gratitude for his return in accord with the age-old deterrence model of criminal justice.
However the decision met with opposition from leading local figures. There was no direct line of communication between Brisbane and Wide Bay and the only available sea passage was via Sydney. Francis Bigge, a Brisbane Valley landholder who happened to be in Sydney at the time of the Executive Council decision, was concerned that such a journey would be deemed a ‘special mark’ which ‘would only embolden the Aborigines of those districts & probably lead to further loss of life’.[55] John Wickham, Police Magistrate for Brisbane, was troubled by the logistics of getting Mickaloe to Wide Bay and recommended that he be released from Brisbane Gaol to find his own way home to which the Colonial Secretary’s office consented in April 1852.[56]
On 26 May 1852 gaol officials at Brisbane released Mickaloe in the township with a warning. He, his friends and supporters then carried out a series of reprisals on settlers to the north as he made his way to his own country at Wide Bay. He was re-arrested for theft arising from one of these raids but the non-appearance of a witness at the November 1852 assizes saw him held over to appear again before Justice Therry in May 1853. On Wednesday 18 May 1853 Plunkett opened the case against another young man, Mickie, who had allegedly been involved in the Gregor Station attack. According to the Moreton Bay Courier the Attorney-General ‘said that he had declined taking the course that was open to him and [indicting] the prisoner for the murder as there was only one witness to his identity, and this event was so long past’;[57] instead young Mickie was tried for stealing from Gregor’s station and found guilty. The next morning however, the repeated non-appearance of a witness again forced the release of Mickaloe from custody, and the following day, Friday, Plunkett brought a second indictment against Mickie for the wilful murder of Mary Shannon, after all. In opening the case
the Attorney-General alluded to the accusations that had been brought against him of eagerness to prosecute whites for acts against blacks, and reluctance to proceed against the aborigines for outrages on the whites. These accusations he indignantly repudiated, and declared his full determinat[ion] at all times to act legally and according to the dictates of his own conscience.[58]
Peter Faucett took the defence of Mickie assisted by local solicitor Robert Little and his cross-examination again brought out the ‘confused impressions’ of Ralph Barrow, the only witness, now 17 years old and recalling events of seven years ago. In his final address Faucett was reported as ‘dwelling with much force upon the evident defects of memory in the only witness, and upon the probability, even if the prisoner had been present, that he had no part in the intention to murder.’ The jury took about an hour to reach their verdict of guilty but Therry, alerted by both the Attorney-General and the defence to the weaknesses of the case, refused to pass sentence of death. As was the custom of the day, Therry instructed that ‘death recorded’ be entered in the Judgment Book, meaning that Mickie’s actual sentence would be decided later by the judge upon his recommendation to the Executive Council.[59]
Plunkett’s second prosecution of Mickie did not spare him from political attack. The following week the Moreton Bay Courier sneered in its editorial over the Attorney-General’s ‘tone of deep feeling’ when he had addressed the court about ‘outrages which he said were perpetrated upon the aboriginal natives by the European settlers’. Overlooking the severity of Mickie’s treatment, the editorial went on to complain about the release of Mickaloe, ‘once more turned loose upon society, to continue his career of crime and blood, should his savage nature prompt him to do so.’ Its conclusion bewailed ‘the amiable philanthropists whose persons have always been safe from the fate so frequently recorded in this document’ and hoped that they would ‘transfer a portion of their compassion from the murderers to the murdered’. It was a statement that impressed Justice Therry. For the conviction of Mickey did provoke complaint, and from an unexpected quarter, to which Therry was forced to reply.
Frederick Walker, the commandant of the Native Police, then stationed at Durundur just 80 kilometres north of Brisbane and in the heart of the traditional lands from which many of the attacks on Europeans were supposed to have originated, sent ‘a private account’ to the colonial secretary, Edward Deas Thomson, expressing concern about events in the district. The Native Police had originally apprehended Mickie but Walker confided ‘I can give the Attorney General a half a dozen more [boys] under the same warrant. All I have to do is go round the different stations’. He wanted ‘an amnesty for every one included in that warrant’. He objected to the fact that Mickie had been convicted of the murder of Mrs Shannon which he presumed was ‘as accessory after the fact’ for ‘he was a mere boy at the time and ... the murderers, made every boy woman and child carry away the property’.[60] Thomson forwarded Walker’s communication to Plunkett and Therry for their opinions. Plunkett was brief. He pointed out that the correct conviction was for ‘aiding and abetting’ and that
as the life of the Convict has been spared (in the humanity and expediency of which I entirely concur) I see nothing in the case of Mickie to call for further consideration at present.[61]
Therry on the other hand wrote at length and with some indignation; he thought some of Mr Walker’s mode of expression ‘very unsuitable’; he explained the law of aiding and abetting and its applicability to Mickie’s case. He did concede that ‘no doubt there are shades and degrees of guilt in the participation each had in the commission of the crime and it is for this reason that I recommended the commutation in Mickey’s case.’ It was his concluding paragraph, however, which echoed the sentiments of the Moreton Bay Courier
Mr Walker’s letter does not in the slightest degree alter my opinion as to the propriety of that commutation and I venture further to suggest that tho’ Mr Walker’s sympathy may be very commendable, it appears to me that the fate of Mr Gregor and his servant is not without some claim to sympathy too, and that it should not be too exclusively bestowed on those who breach the law.[63]
It was a harsh conclusion since Frederick Walker had been five years continuously in the field facing the day to day reality of frontier violence. Commandant Walker was officially reprimanded for his comments made ‘under feelings of excitement’.[64]
The most sensational case was left to Therry’s last appearance in Brisbane. In May 1854 the Djindubarri elder, Dundalli, was captured and committed on five counts, including the murders at Gregor’s Station and of the sawyers at the Pine River. The Moreton Bay Courier as emotional as ever had wanted a special commission to try him[65] but his case went to trial as usual at the next assizes in November 1854. The crown cases were taken by William Purefoy while Peter Faucett took Dundalli’s defence. Purefoy proceeded with only two of the five indictments, the murders of William Boller and of Andrew Gregor. The crown’s main witnesses were again the ex-convict Smith and the much interrogated Ralph Barrow.
The attack on the sawyers was dealt with first. At the time of the original inquest in September 1847 James Smith claimed to recognise one Gubbi man although he could not name him and was unable to identify any of the other participants in the assault. Subsequently some Indigenous workers on nearby Whiteside Station were alleged to have stated that Dundalli was involved and from that time on Smith confidently asserted Dundalli’s presence.[66] Seven years later Smith’s insistence that Dundalli was present left Faucett with little room to mount a defence. After brief recounting of events by the witnesses for the crown, Faucett concluded with
an eloquent and powerful appeal to the jury on behalf of the prisoner, and closed his address with some strong comments upon the insufficiency and the mockery of the protection said to be thrown around the blacks by the British Government.
It was not a plea that could win favour with the presiding judge but Faucett who had only arrived in Sydney in 1852 seemed unaware of Therry’s stand in this regard. Therry ‘in charging the jury, expressed his emphatic dissent from these sentiments.’[67] Myall Creek was yet again invoked. ‘The law was equally careful of the life of a black as of a white, and within his own experience, he knew of no less than seven cases where white men had been executed for the murder of aboriginal natives’, Therry stressed, before summarising the evidence ‘at length’.[68]
Dundalli was found guilty – the press reports vary as to whether the jury took 15 minutes or an hour to reach their decision – and the court moved on to hear a case of wounding with intent and another of horse stealing before returning to Dundalli and his second indictment. His trial for the murder of the squatter Andrew Gregor was the last trial for the day and for this criminal session. Having provoked Therry’s ire earlier in the day Faucett tried a new tactic to win some sympathy from the judge and jury. He objected to the fact that Dundalli was shackled while in the dock. William Purefoy conceded it was not normal procedure but argued that Dundalli was an exception he ‘being a savage of great strength and daring’ and called the goalkeeper to provide evidence of Dundalli’s attempted escape.[69] Therry, however, acknowledged the principle of his right to be unfettered and was about to order the removal of the heavy irons when Faucett withdrew his objection, claiming that he was satisfied with ‘the admission of the prisoner’s right’.[70]
The trial proceeded with Dundalli in chains in the dock and Ralph Barrow, now 18 years old, in the witness stand. Despite the lack of time to prepare, Faucett was familiar with Barrow and the issues of the case having taken the defence of Mickie before Justice Therry in May 1853. His cross-examination proved that Barrow ‘had no idea of how long ago the event occurred. He also ... did not know the names of any other blacks present.’[71] Knowing how this same weak evidence had failed to create doubt in the minds of Mickie’s jurymen, Faucett addressed them on the discrepancies and called John Clements Wickham to the stand. Wickham was the most senior official in Brisbane, was recently appointed Government Resident, and was the magistrate who had conducted the Gregor inquest and heard Barrow’s original testimony at the scene of the raid. Wickham made clear that Barrow had named ‘several other blacks’ as being present at the attack.[72]
Over the past eight years Barrow had given different evidence at each committal hearing and supreme court trial. Therry had presided at three trials which drew on Barrow’s testimony either directly or indirectly, yet he undercut Faucett’s argument completely. The judge in his summation of the issues for the jury insisted that ‘from first to last’ Barrow ‘had maintained that Dundalli had struck the blow which killed Mr Gregor’. It was an extraordinary statement. The Clerk of Petty Sessions had merely to open the Brisbane Bench Book to show that the judge was wrong on the facts.[73] Furthermore, given the propensity of Brisbane juries in these interracial cases to affirm guilt it was hardly necessary. At the end of a long day, the jury ‘retired for a few minutes’ before returning with a verdict of guilty.[74]
Between Purefoy’s declamations that the court room would be ‘unsafe’ should Dundalli be unfettered, Faucett’s retreat from having the defendant unmanacled and Therry’s interventions to undermine the defence arguments, the brief press reports of Dundalli’s trials reverberate with tensions. Faucett may well have felt slighted by the judge’s dismissal of his arguments but the evidence suggests that the stress went beyond any sensitivities among members of the bar. The signals come from Therry himself - the destabilising factor was the defiant personality facing his white accusers and defenders from the dock.
Other than the Myall Creek trials, Dundalli’s is the only interracial case that Therry gives any attention to in his Reminiscences. His sense of intimidation in Dundalli’s presence can still be felt through this account even though it was written nearly 10 years after the trial. The gaolers had dressed Dundalli in European dress and the dreadlock coils that were a feature of men’s hair in south-east Queensland had been washed and cut European style.[75] Even without the overt signs of Indigenous physicality, Dundalli conveyed a sense of ‘formidable ... ferocious strength’, according to Therry. He towered over the judge who described him as ‘the largest man I ever looked upon’ and recorded the presence of six constables in court to guarantee security during his trials.[76] So much of Therry’s time in the colonial court system had been spent defending the liberal model of the law and its application across the racial divide. Here he was faced with an Indigenous defendant who refused to be grateful, refused to respect those who sought to help him and showed nothing but contempt for British law. Nor was he a man who could be readily patronised – he was neither young, nor weak, nor cowered. According to Therry, despite evidence that Dundalli spoke English well, he disrupted the trial by beckoning to a settler he recognised in the court and asking him to offer the judge a bribe of sixpence. At another stage in the hearing he addressed the judge directly, ostensibly offering to row him back to Sydney. Disrespect for the solemnity of court ritual and for his dignity as judge was deeply disturbing for Therry. He failed to recognise these incidents as a rejection of the court’s authority. In his view they could only be ‘distressing ... indications of marked inferiority of mind’.[77]
Dundalli’s disdain for the colonial court, however, is consistent with his contempt for his gaolers and fellow prisoners; he refused to see the Catholic chaplain on the eve of his execution and until the noise of the construction of the gallows reached his solitary cell he had refused to believe that they would dare to hang him. Even at the end, when he mounted the gallows and saw his people gathered in the scrub on the hill opposite the gaol, he refused to recognise the authority of British law. Dundalli yelled a rapid address to his countrymen – his message was not to respect British law but to avenge his death according to customary law.[78]
As a colonial judge of the New South Wales supreme court Therry was brought face-to-face with the limits of a colonial office policy which insisted that there could be no state of war on the Australian frontiers. An imperial policy which refused to see Indigenous Australians as enemy subjects of a rival power could only criminalise their behaviour once they were defined as British subjects. The injustice of this policy as it applied to young men involved in group action was softened by legal procedure which required individual identity to be proven and by judicious use of the power to commute the most severe penalty. A man whose social networks included Irish aristocracy and British prime ministers found it easy to look upon these young men not as enemies but as ‘untutored savages’ to be pitied and protected. When confronted by a man whose opposition and disdain could not be silenced, however, Therry responded with mutual contempt; he failed to recognise any integrity in Dundalli’s position and decried Dundalli’s lack of intelligence and his ‘savage ferocity’ in his memoirs. Paternalism gave way to the colonial discourse of dehumanisation of Therry’s political opponents, those settlers who had opposed any legal rights for indigenous Australians.
Therry’s portrayal of Dundalli’s ‘marked inferiority of mind’ is completely out of step with witnesses from Brisbane[79] and even Dundalli’s long standing enemy, the Moreton Bay Courier, which begrudgingly acknowledged both his intelligence and his leadership.[80] There were no appeals from the community over Therry’s awarding of the death penalty. In this case Frederick Walker was one of many northerners who had confidently asserted Dundalli’s guilt in these attacks[81] and by December 1854 Walker was on his own downhill spiral toward alcoholism. The judge’s advice to the Executive council was the last and only avenue of review. On later reflection in Sydney Therry did reconsider his instructions regarding the witness Ralph Barrow. Although he had been sentenced to death for both murders, the Executive Council minute regarding Dundalli’s execution referred only to his responsibility for the murder of William Boller.[82]
Therry thus upheld the integrity of the legal process while eradicating the challenge to the sovereignty of British law that Dundalli represented. The formal processes of the court room effectively rendered traditional law and authority invisible. Within its walls traditional lawmen were re-cast as criminals and their enforcement of its customs as ferocious savagery. These defects were compounded by the non-admission of Aboriginal evidence which in practice left indigenous defendants mute while the formality of the trial process required their passivity. In the resulting newspaper reports Dundalli the defendant is sidelined, a barely visible person in the court room. The value in focusing on the discrepancies in Therry’s sentencing is that they require a shift in the historic gaze so that the image of a man who had refused to play the part of a pitiable savage becomes foregrounded. The means to achieve this shift in focus are few and racially-biased consisting of brief press reports of circuit court trials and a few pages of a nineteenth century judicial autobiography. It is remarkable that for all this, they fail to erase the evidence of Indigenous agency. The Moreton Bay cases highlight the importance of the individual judge’s role in asserting the sovereignty of British law and denying the validity of Aboriginal resistance on the frontier.
[*] Senior Lecturer in History, University of Southern Queensland. I would like to thank The Honourable Justice J Jerrard, Queensland Court of Appeal, for providing feedback on this paper.
[1] J M Bennett (ed), Callaghan’s Diary (2005) iii.
[2] Libby Connors, The ‘birth of the prison’ and the death of convictism: the operation of the law in pre-separation Queensland 1839 to 1859, (D Phil, University of Queensland, 1990) 312-313, 315-317.
[3] See, eg, Moreton Bay Courier 19 May 1852.
[4] Col Sec to PM Moreton Bay 18 April 1850 in Government Resident Moreton Bay, RES/A3 QSA; J.M. Bennett ‘Introduction’ in Roger Therry, Reminiscences of Thirty Years Residence of New South Wales and Victoria, (facs ed, 1974) 28.
[5] Milford to Colonial Secretary 13 June 1858, Letter no. 58/1966, Clerk of Works Moreton Bay IL: 1856-59 WOK/1 QSA
[6] Bennett, above n 1, 58, 66, 96, 118.
[7] Based on newspaper reports of the sittings. Moreton Bay Courier 18 May 1850, 16 November 1850, 25 May 1851, 15 November 1851, 19 May 1852, 26 November 1853, 27 May 1854, 25 November 1854, 2 June 1855 and 24 November 1855; Moreton Bay Free Press 23 November 1852, 17 May 1853.
[8] Bennett, above n 1, xvi; J M Bennett A History of the New South Wales Bar (1969) 54.
[9] W B Perrignon ‘Faucett, Peter (1813-1894)’ (1972) 4 Australian Dictionary of Biography 157-158
[10] Above n 2, 316-317.
[11] G.D. Woods, A History of Criminal Law in New South Wales: The Colonial Period 1788-1900 (2002) 3-5.
[12] Moreton Bay Courier 18 May 1850.
[13] Letter to the Right Hon. Wm. E. Gladstone M.P., Sydney 1850; Bennett, above n 4, 53 n.102.
[14] Libby Connors, ‘Traditional Law and Indigenous Resistance at Moreton Bay, 1842-1855’ (Pt I)[2005] ANZLH E-Journal 107; Libby Connors, ‘Traditional Law and Indigenous Resistance at Moreton Bay, 1842-1855, Part II’ [2006] ANZLH E-Journal Refereed Paper No 11, 1.
[15] Report on the State of the Aborigines for the year ending 31 December 1846, Stephen Simpson, The Simpson Letterbook, (1979) 23-24.
[16] Annual Report on the State of the Aborigines in the District of Moreton Bay for the Year ending the 31st December 1847, CCL Moreton Bay in Colonial Secretary Correspondences: 1848: CCL (1) 4/2811 SRNSW
[17] Denis Cryle ‘”Snakes in the grass” The press and race relations at Moreton Bay 1846-47’ (1992) 11 Brisbane The Aboriginal Presence: Brisbane History Group Papers 69, 69-76.
[18] Moreton Bay Courier 24 October 1846, 21 November 1846.
[19] Moreton Bay Courier 22 September 1849.
[20] Bennett, ‘Introduction’ above n 4, 12
[21] Ibid, 13. Currey gives the date as 1827; C. H. Currey, 'Therry, Sir Roger (1800 - 1874)', (1967) 2 Australian Dictionary of Biography, 512-13.
[22] Bennett, ‘Introduction’ above n 4, 36.
[23] Ibid 13.
[24] John Molony, An Architect of Freedom: John Hubert Plunkett in New South Wales 1832-1869, (1973) 22.
[25] Bernard T. Dowd, Averil F. Fink, 'Mudie, James (1779 - 1852)' (1967) 2 Australian Dictionary of Biography 264-266; Bennett, ‘Introduction’, above n 12, 42.
[26] James Mudie, The Felonry of New South Wales (first published 1837, 1965 ed.) esp 64
[27] Bennett, ‘Introduction’, above n 4, 30-31.
[28] Bennett, ‘Introduction’, above n 4, 38.
[29] 9 March 1837 cited in Molony, n 24, 26 n 57.
[30] Peter Cochrane, Colonial Ambition: Foundations of Australian Democracy (2006) 54-55.
[31] R. Therry, Reminiscences of Thirty Years Residence of New South Wales and Victoria, (1st ed 1863). 271-286.
[32] Connors, above n 2, 169-70; Cryle, above n 17, 69, 71-78; John Mackenzie-Smith, The Scottish Presence at Moreton Bay, 1837-59: Collected Insights, (2005) 181-82.
[33] Bruce Kercher, An Unruly Child: A History of Law in Australia, (1995) 16-17.
[34] Cited by Bennett, above n 4, 33. See also the SMH’s criticism of him as ‘a violent politician’; cited by Molony, above n 24, 45.
[35] Cited by Cochrane above n 30, 55.
[36] (Emphasis in original) Bennett, above n 1, 162.
[37] For examples see ibid, 161 163.
[38] (Emphasis in original) Lang in Colonial Observer cited by Bennett, above n 4, 54 n. 129.
[39] Bennett, above n 1, 164.
[40] Bennett, above n 1,75; see also 86, 124, 137, 140, 150.
[41] Ibid, 136.
[42] Cited by Cochrane, above n 30, 48.
[43] Bennett ‘Introduction’ above n 4, 25.
[44] Bennett, above n 8, 19-21.
[45] Molony, above n 24, 60-67; J M Bennett, Sir William a’Beckett: First Chief Justice of Victoria 1852-1857 (2001) 12.
[46] Bennett ‘Introduction above n 4, 22.
[47] Currey, above n 21, 512-513.
[48] Moreton Bay Courier, 20 May 1850; Libby Connors, ‘The theatre of justice: Race relations and capital punishment at Moreton Bay 1841-59’ (1992) 11 Brisbane The Aboriginal Presence: Brisbane History Group Papers 48, 50-52.
[49] Connors, above n 2, 343.
[50] Within weeks of the attack, one Indigenous man, Constable, had been arrested and tried by the supreme court in Sydney. Sydney Morning Herald, 30 November 1846; R v Constable 1846 Supreme Court, Criminal Jurisdiction: Clerk of the Peace: Brisbane 9/6357 SRNSW
[51] Moreton Bay Courier, 16 August 1851, 23 August 1851; Prison no. 356 in Prison Register: 1851 PRI 1/25 QSA.
[52] Moreton Bay Courier, 16 August 1851, 30 August 1851
[53] Moreton Bay Courier, 15 November 1851
[54] Letter no. 51/90 Colonial Secretary’s Office to Police Magistrate Brisbane, 22 December 1851 in Letters addressed to the Government Resident Moreton Bay by the Colonial Secretary, Sydney, 1851. RES/A3 QSA
[55] Francis Bigge to Col Secretary, 30 January 1852 enclosure in L/no. 52/3069 Colonial Secretary Letters Received Main Series: 1852 4/3075 SRNSW
[56] Police Magistrate Brisbane to Col Secretary 10 April 1852 L/no. 52/3069 Colonial Secretary Letters Received Main Series: 1852 4/3075 SRNSW
[57] Moreton Bay Courier, 21 May 1853
[58] Ibid. The paper spelt Mickie’s name as ‘Mickey’ and the defence counsel’s as ‘Fawcett’.
[59] Ibid. Death was commuted to seven years hard labour on the roads or other public works. Justice Therry to Col Sec 11 July 1853, L/no. 53/6065 in bundle beginning 52/3069, Col Secretary Letters Received Main Series: 1852 4/3075 SRNSW; Prison Register: 1853 PRI 1/25 QSA Gaol No. 152; Supreme Court, Criminal Jurisdiction, Judgement Book: Brisbane Circuit Court, 1852-53 4/5745-5753 SRNSW.
[60] Commandant Native Police to E.Deas Thomson, 11 July 1853, L/no. 53/6063 in bundle beginning 52/3069, Col Secretary Letters Received Main Series: 1852 4/3075 SRNSW
[61] AG to Col Sec 29 July 1853 L/no. 53/6617 in bundle beginning 52/3069 Col Secretary Letters Received Main Series: 1852 4/3075 SRNSW
62 AG to Col Sec 29 July 1853 L/no. 53/6617 in bundle beginning 52/3069 Col Secretary Letters Received Main Series: 1852 4/3075 SRNSW`
[63] J Therry to Col Sec 9 August 1853 L/no. 53/6955 in bundle beginning 52/3069 Col Secretary Letters Received Main Series: 1852 4/3075 NSWRC
[64] Governor’s notings on ibid.
[65] Moreton Bay Courier, 10 June 1854.
[66] Inquest papers in R v Mickie (1854) Supreme Court, Criminal Jurisdiction: Clerk of the Peace, Brisbane, 9/6378 NSWRC.
[67] Moreton Bay Courier, 25 November 1854
[68] Moreton Bay Free Press, 28 November 1854
[69] Moreton Bay Courier, 25 November 1854
[70] Moreton Bay Free Press, 28 November 1854.
[71] Moreton Bay Courier, 25 November 1854.
[72] Ibid.
[73] Deposition and Minute Books: Register – Depositions 06/02/1846-31/10/1846 Series 753 Item 518884 QSA.
[74] Moreton Bay Courier, 25 November 1854; Moreton Bay Free Press, 28 November 1854.
[75] Moreton Bay Courier, 27 May 1854; Illustrated Sydney News, 16 Dec 1854
[76] Therry, above n 31, 287-288.
[77] Ibid, 288-289.
[78] Moreton Bay Courier 6 January 1855; Connors, ‘Part II’, above n 14, 9-10.
[79] Therry, above n 31, 287-289.
[80] Moreton Bay Courier 6 January 1855, 13 January 1855.
[81] Walker, above n 60.
[82] Col sec to Gov Resident, 13 December 1854, Letter no. 54/145 Letters addressed to the Government Resident Moreton Bay by the Colonial Secretary, Sydney, 1854. RES/A5 QSA
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