Myall Creek massacre

R. v. Kilmeister (No. 1)[13] – The station hutkeeper, George Anderson, the only white witness, was the key witness for the prosecution, conducted by Plunkett and Roger Therry as his junior counsel.[14] He told the court how the eleven men had tied the victims together, and led them away. He also said that Edward Foley, one of the perpetrators, had shown him a sword covered with blood. Anderson's testimony was supported by William Hobbs and Magistrate Day, who had conducted the police investigation.[15] The defence's case solely rested on the argument that the bodies could not be identified accurately.[7]

Justice Dowling took care to remind the jury that the law made no distinction between the murder of an Aboriginal person and the murder of a European person. The jury, after deliberating for just twenty minutes, found all eleven men not guilty. A letter to the editor of The Australian on 8 December 1838 alleged that one of the jurors had said privately that although he considered the men guilty of murder, he could not convict a white man of killing an Aboriginal person: "I look on the blacks as a set of monkeys and the sooner they are exterminated from the face of the earth, the better. I knew the men were guilty of murder but I would never see a white man hanged for killing a black." The letter writer did not hear this said himself, but alleged that he had spoken to a second man who told him he had heard a juror say it. The letter writer went on to say, "I leave you, Sir, and the community to determine on the fitness of this white savage to perform the office of a juryman under any circumstance".[16]

R. v. Kilmeister (No. 2)[17] – Attorney-General Plunkett however requested the judge to remand the prisoners in custody awaiting further charges from the same incident. Although all eleven were remanded in custody only seven were to face a second trial. The second trial was held on 27 November but only 28 of the 48 called up for jury service turned up; it later came to light that the Black Association had intimidated many into staying away.[7] The trial restarted on 29 November under Justice Burton. Anderson, who had been the key witness at the first trial, gave an even more lucid account of the massacre at the second trial. He told the court that:

While Master was away, some men came on a Saturday, about 10; I cannot say how many days after master left; they came on horseback, armed with muskets and swords and pistols; all were armed ... the blacks, when they saw the men coming, ran into our hut, and the men then, all of them, got off their horses; I asked what they were going to do with the blacks, and Russel said, "We are going to take them over the back of the range, to frighten them".[18]

Anderson then gave evidence that the Aboriginal people in the hut had cried out to him for assistance. He said two women were left behind at the huts, one "because she was good-looking, they said so," and that there was a young child who had been left behind, who attempted to follow her mother (who was tied up with the others), before Anderson carried her back to the hut.[18] There were also two other young boys who had escaped by hiding in the creek.

Anderson also gave evidence about the perpetrators' return and the burning of the bodies.

I [Anderson] saw smoke in the same direction they went; this was soon after they went with the firesticks ... Fleming told Kilmeister to go up by-and-by and put the logs of wood together, and be sure that all [of the remains] was consumed ... the girls they left, and the two boys, and the child I sent away with 10 black fellows that went away in the morning ... I did not like to keep them, as the men might come back and kill them.[18]

Anderson said he wanted to speak the whole truth at the second trial. He also said he did not seek to be rewarded for testifying, rather he asked "only for protection".[18] The trial continued until 2 am on 30 November, when the seven men were found guilty. Initially, the foreman had stated that the men had been found not guilty. However, one juror immediately rose and stated that there'd been a mistake. They had only acquitted the defendants on separate charges. However, they had found the men guilty of the murder of a single six-year-old Aboriginal child whose name was unknown. According to the indictment, the murder had been committed "by shooting with a pistol, cutting with a sword, and beating, casting into a fire, and keeping the child there until death ensued."[19] On 5 December, they were each sentenced to death by hanging. Prior to sentencing, Justice Burton gave a speech. A reporter present summarized what Burton, who teared up during his speech, said.[20][21]

This is not a case where any provocation has been given, which might have been pleaded in excuse for the deed…

The murder was not confined to one man, but extended to many, including men, women, children, and babies hanging at their mothers’ breasts, in numbers not less than 30 human souls — slaughtered in cool blood. This massacre was committed upon a poor defenceless tribe of Blacks, dragged away from their fires at which they were seated, resting secure in the protection of one of the prisoners. Unsuspecting harm, they were surrounded by a body of horsemen, 12 or 13 in number, from whom they fled to the hut, which provided the mesh of destruction. In that hut the prisoners, unmoved by the tears, groans, and sighs, bound them with cords — fathers, mothers, and children indiscriminately – and carried them away to a short distance, when the scene of slaughter commenced, and stopped not until all were exterminated, with the exception of one woman.

I do not mention these circumstances to add to the agony of that moment, but to portray to those standing around the horrors which attended this merciless proceeding, in order, if possible, to avert similar consequences hereafter.

It appears that extraordinary pains have been taken by the prisoners, or by some persons deeply interested in the concealment of their crime, to prevent the murder from coming to light. But, it has pleased Almighty God to conduct a person to that heap of human remains, to be a witness of the scene, before the heap was taken away bit by bit, as it evidently had been, to remove every vestige of the murder.

The crime was, however, committed in the sight of God, and the blood of the victims cries for vengeance.

The sentence was ratified by the Executive Council of New South Wales on 7 December, with Gipps later saying in a report that no mitigating circumstances could be shown for any of the defendants, and it could not be said that any of the men were more or less guilty than the rest.[22] The seven men, Charles Kilmeister, James Oates, Edward Foley, John Russell, John Johnstone, William Hawkins and James Parry, were executed early on the morning of 18 December 1838 at Darlinghurst Gaol. Following the executions, Henry Keck, the chief of the prison, said all of the convicts had confessed.

"Sir, in compliance with your suggestion to me yesterday, respecting the seven men executed on Tuesday morning, I have the honour to inform you, that frequently, during their confinement here, they each and all, at different times, acknowledged to me their guilt; but implied, that it was done solely in defense of their masters' property, that they were not aware that in destroying aboriginals they were violating the laws, or that it could take cognizance of their having done so, as it had (according to their belief) been so frequently done in the colony before."[23]

The four remaining accused, Blake, Toulouse, Palliser and Lamb, were remanded until the next session to allow time for the main witness against them, an Aboriginal boy named Davey, to be prepared in order to take a Bible oath. It has been claimed that according to the missionary, Lancelot Edward Threlkeld, Henry Dangar had arranged for Davey "to be put out of the way" and he was never seen again; and with Davey unable to be located, the four were discharged in February 1839.[7] However, Threlkeld made no such statement regarding Dangar. What Threlkeld actually wrote about Davey's whereabouts at the time was:

... for Mr Arndell, who was here last week, states that on his recent return from the Gwyder he was informed by a Gentleman that Davey was put out of the way, but whether with his throat cut, or only hid, could not be ascertained.[24]

Further, when the remaining four accused came before the Court on 14 February 1839, Attorney General Plunkett informed the Court:

... [Davey] had been under the tuition of a competent person for two months, but it was now reported to [the Attorney General] that he was not so far instructed as to be a competent witness, and it was quite uncertain when he would be; and he [the Attorney General] did not think he should be doing his duty in risking public justice by prosecuting the case without his evidence.

...

I cannot proceed with the trial with any hope of success without [Davey's] evidence ....[25]

In other words, according to Plunkett, in mid-February 1839 Davey was alive and "under tuition", however, Plunkett could not proceed with the case against the remaining accused because of the uncertainty surrounding the time it would take to complete that tuition. It was for this reason that the accused were discharged.

I have just returned from seeing the seven men all launched into eternity at the same moment it was an awful sight and has made me feel quite sick – I shall never forget it.

— J. H. Bannatyne, Letter from J. H. Bannatyne to Other Windsor Berry Esq. relating to the Myall Creek Massacre, 17 December 1838[26]

John Henry Fleming, the leader of the massacre, was never captured. He hid or was protected, either in the Hawkesbury district, on a relative's property inland from Moreton Bay, or in Van Diemen's Land (according to conflicting reports that remain unresolved). He later became a respected farmer, church warden and (ironically) justice of the peace in the Hawkesbury district.[27][28] John Blake, one of the four men acquitted at the first trial and not subsequently charged, committed suicide in 1852. One of his descendants believes he did so out of a guilty conscience.[29]

The Myall Creek case led to significant uproar among sections of the population and the press, sometimes voiced in favour of the perpetrators. The Sydney Herald was particularly strident, declaring in October 1838 that "the whole gang of black animals are not worth the money the colonists will have to pay for printing the silly documents on which we have already wasted too much time".[16][30] This was followed by more violent passage in November 1838 that if Aboriginal Australians, referred to as the "filthy, brutal cannibals of New Holland" and "ferocious savages",[31] attempt to destroy property or kill someone, "do to them as you would do to any white robbers or murderers — SHOOT THEM DEAD."[31][32]

Not all newspapers or white settlers took the same view,[33] with The Australian publishing a poem by Eliza Hamilton Dunlop, "The Aboriginal Mother" on 13 December 1838 about a week after the seven men were found guilty, but several days before they were hanged.[34] The poem expresses Dunlop's sorrow over the massacre and expresses sympathy for the Aboriginals of Australia.[35] Dunlop responded to criticism by the Sydney Herald,[36] arguing on behalf of the poem and explaining why her views were correct.[37]

The editorial in John Dunmore Lang's newspaper The Colonist on 12 December 1838 argued at length that "the murders... are, to a serious extent, chargeable upon us as a nation".[38][39]

The Myall Creek massacre is often cited as the only massacre of its kind in colonial Australia for which white people were subsequently executed.[40] However, there is at least one case prior to Myall Creek. In 1820, two convicts, John Kirby and John Thompson, attempted to escape from the colony but were captured by local Aboriginal people and returned to Newcastle. A military party accompanied by two constables set out to meet them and Kirby was seen by the party to stab Burragong (alias King Jack) whereupon he was felled by a waddy. Burragong initially appeared to recover, stating that he was murry bujjery (much recovered) and collected his reward of a "suit of clothing". However, he later complained of illness and died from his wound ten days after being injured. Kirby and Thompson were both tried for "willful murder". All the European witnesses testified that "no blow was struck by any native" before Kirby attacked Burragong. Thompson was acquitted, but Kirby was found guilty and sentenced to death, with his body to be "dissected and anatomised".[41]

The Myall Creek massacre was just the latest of many massacres that took place in that district (the Liverpool Plains) around that time. As elsewhere in the colony, the Aboriginal people at times resisted the expanding invasion of their land by spearing sheep and cattle for food and sometimes attacking the stockmen's huts and killing the white men. In the Liverpool Plains district there had been some cattle speared and huts attacked and two whites murdered (allegedly by Aboriginal people). The squatters complained to Acting Governor Snodgrass, who sent Major James Nunn and about 22 troopers up to the district. Nunn enlisted the assistance of up to 25 local stockmen and together they rode around the district murdering any Aboriginal people they came across. Nunn's campaign culminated in the Waterloo Creek massacre of 1838 at Waterloo Creek. Although no definitive historical records are available, estimates of Aboriginal people murdered range from 40 to over 100.

When Nunn returned to Sydney, many of the local squatters and stockmen continued the "drive" against the Aboriginal people, including the Myall Creek massacre. However, because of community outrage, Governor Gipps did not encourage further prosecutions, including for the earlier Waterloo Creek massacre, nor the later McIntyre's Station massacre, both of which apparently involved a greater number of Aboriginal deaths.

In his book, Blood on the Wattle, travel journalist Bruce Elder says that the successful prosecutions resulted in pacts of silence becoming a common practice to avoid sufficient evidence becoming available for future prosecutions.[42] Another effect, as two Sydney newspapers reported, was that poisoning Aboriginal people became more common as being "much safer".[43][44] Many massacres went unpunished due to these practices,[42] as what is variously called a 'conspiracy' or 'pact' or 'code' of silence fell over the killings of Aboriginal people.[45][46][47]

The Myall Creek massacre and the subsequent trial and hanging of some of the offenders had a profound effect on the "outside" settlers and their dealing with indigenous people throughout all sections the colonial Australian frontiers. The Sydney Herald and the spokesmen for the settlers in the remote districts of New South Wales and Victoria, frequently leading men such as William Wentworth, typically classified the trial and execution of the offenders as "judicial murder".[48][49] Similar opinions were voiced years later in Queensland, the most populated section of the continent in terms of indigenous people, where it was the subject of numerous statements in the then newly separated parliament. In 1861, there was almost unanimous agreement that the prosecution and hanging in 1838 had been nothing less than '...judicial murder of white men in Sydney', as the government spokesman Robert Ramsay Mackenzie phrased it in his speech in the Legislative Assembly on 25 July, and that 'white troopers were "useless" as they could not be "acting against the blackfellows as they wished, lest an outcry should be raised against them, and they could be prosecuted for murder." '[50] Arthur Macalister, spokesman for the opposition (later three times Premier of Queensland) agreed, equally using the term "judicial murder".[51] The notion seemingly almost unanimously agreed to by the first Queensland parliament was that no white man should ever be prosecuted in Queensland for the killing of a black.[50]

On 9 June 2023, ahead of the 185th anniversary of the massacre, The Sydney Morning Herald, in an editorial, apologised for its part in "spreading racist views and misinformation while campaigning for the killers to escape justice". It stated its disapproval of the death sentence for the 7 of the 12 men involved, "not due to a lack of evidence or genuine doubts over the integrity of any legal process, but because the perpetrators were white and the dead black". It admitted that its coverage was out of step with other reporting at the time, and also apologised for other articles encouraging readers to kill Aboriginal people if they ever felt "threatened".[52][53][54]