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THE MYALL CREEK MASSACRE: FULLY SATISFIED JUSTICE?
GEMMA KEOGH0
ABSTRACT: A full examination of the Myall Creek Massacre and the two subsequent trials helps deepen our understanding of the unjust treatment of First Nations peoples in contemporary society. This paper examines the factors that contributed to the verdicts which first acquitted and then convicted the accused. It also explores the trials’ historical accounts which reveal significant difficulties for the prosecution, including distance, minimal evidence, witness intimidation, pressure from the public and bias on the part of the jurors.
I Introduction
First Nations Peoples and their treatment within the Australian justice system has been a longstanding and continuous conversation. The Myall Creek Massacre, which involved First Nations Peoples, has significantly impacted this discussion. Understanding it fully requires consideration of the Massacre, along with what occurred in the search for justice during the trials and beyond. The massacre, viewed as a ‘shameful incident in Australian colonial history’,0 is an example of European settlers exerting their self-determined authority over an unarmed and non-violent group of First Nations Peoples. The trial, along with the laws of colonial New South Wales, colonial interests and public opinion, helped shape the contemporary discourse of First Nations Peoples and the law. In this paper, an examination of those factors contributing to the verdicts will be undertaken, enabling readers to ascertain if justice had occurred, as some claim, or if the injustice First Nations Peoples continue to face was prevalent in this case as well. This paper will acknowledge multiple sources ranging from newspapers, court proceedings and other grey literature in its hunt to argue that ‘justice was not fully satisfied’. Not all the perpetrators were held to account for their contributions in the massacre, for perpetuating the ill-treatment of First Nations Peoples that continues to this day.
II BACKGROUND – MYALL CREEK MASSACRE
Henry Dangar, a respected settler within the Hunter River region,0 was away from his land in Myall Creek leaving an overseer in charge.0 On 10 June 1838, while the overseer William Hobbs was elsewhere, twelve armed stockmen — a mixture of free settlers and convicts — entered Dangar’s land.0 This pastoral lease or station was a place where some of the Wirraaraay people of the Gamilaroi nation were invited to make camp.0 They were considered friendly, many of the men were employed by nearby stations and the community was welcomed by Hobbs to make a home on the land.0 After entering the station, thirty unarmed First Nations Peoples0 — men, women and children — were captured, restrained with bindings, deliberately shot, and decapitated by the stockmen in retaliation for lost cattle
0 This paper was originally submitted as assessment for the subject HIS5115 Legal History
0 Lyndall Ryan, ‘’A Very Bad Business’: Henry Dangar and the Myall Creek Massacre 1838’ (Web Page, 05 May, 2023) https://www.newcastle.edu.au/__data/assets/pdf_file/0015/31056/Henry-Dangar-and-the-Myall-Creek-massacre.pdf 1.
0 Ibid.
0 Ibid.
0 Sarah McKibbin, Libby Connors, and Marcus Harmes, A Legal History for Australia (Hart Publishing, 2021) 228.
0 Ibid.
0 Ibid.
0 Some records indicate it was between 28 to 30 people, see: McKibbin, Connors and Harmes (n 5) 228; Jane Lydon, ‘Pity, Love or Justice? Seeing 1830s Australian Colonial Violence’ (2017) 1(2) Emotions: History, Culture, Society 109, 110.
— a deed for which the victims were not responsible.0 Days after this heinous act, the stockmen returned to burn the bodies, along with any other incriminating evidence. 0 Some scholars have suggested this was nothing more than an ‘opportunity massacre’, where the perpetrators acted so ruthlessly as they believed they would not be held accountable.0 Hobbs returned to the station and was confronted with the ‘charred remains’ of the community he had gathered there.0 Unlike similar crimes,0 he immediately informed a neighbour who sent word via a horse-riding squatter to authorities in Sydney, as this was the closest police presence.0
The colony’s new Governor, Sir George Gipps, was instructed by the Colonial Office to ‘ensure the protection of Aboriginal people’ within the colony.0 This resulted in his profound desire to investigate all First Nations Peoples’ deaths linked to conflicts with white settlers. 0 Therefore, in the days following the massacre, an investigation was launched by Gipps. He sent Magistrate Edward Day to unearth the truth.0 After completing a preliminary report, Day initiated a full inquiry led by Lieutenant George Denis Pack of the Mounted Police. 0 This exploration for truth, both from Day and Pack, concluded with multiple eyewitness statements and bone fragments that lead to the arrest of eleven lawbreakers.0 The twelfth offender, John Fleming, fled – thus escaping charges for this particular incident. 0 Fleming and his notorious escape from justice have been the topic of many discussions, particularly when it comes to the suggested cover-up that allowed him to remain a free settler despite allegations that he was the ringleader.0 Those who were arrested were charged with wilful murder by Gipps and ordered to face trial.0
III THE FIRST TRIAL – AN ACQUITTAL
The perpetrators were subject to two trials, both led by Attorney-General John Plunkett, a renowned Australian-Irish attorney.0 It is suggested that Plunkett’s significant compassion for the victims of the massacre, and therefore his intense search for justice, stems from his own experience of unjust discrimination as an Irish Catholic.0 Or it could be an engrained desire to correct injustice, as he previously partnered with Daniel O’Connell, and the two successfully repealed Ireland’s Penal Laws in 1829.0 Regardless of his motivation, Plunkett resolved during his prosecution of the perpetrators that ‘the rule of law should be upheld’, irrespective of any consequences he may receive personally.0 Plunkett took charge of the investigation materials and carefully laid out his case. In doing so, he charged eleven of the twelve offenders for two of the thirty murders.0
0 McKibbin, Connors and Harmes (n 5) 228.
0 Ryan (n 2) 8–9.
0 Lydon (n 8) 119.
0 McKibbin, Connors and Harmes (n 5) 228.
0 Ryan (n 2) 1.
0 Ibid.
0 Greg Smith, ‘The Contribution of Irish-Australian Lawyers to the Australian Legal System’ (2012) 36 Australian Bar Review 110, 112.
0 Ibid.
0 McKibbin, Connors and Harmes (n 5) 228.
0 Ryan (n 2) 2.
0 McKibbin, Connors and Harmes (n 5) 228.
0 Ibid.
0 Patsy Withycombe, ‘The Twelfth Man: John Henry Fleming and the Myall Creek Massacre’ (2018) 20 Journal of Australian Colonial History 103.
0 McKibbin, Connors and Harmes (n 5) 228.
0 Smith (n 15) 112.
0 John Kennedy McLaughlin, ‘John Hubert Plunkett: An Irish Lawyer in Australia’ (2021) 50(1) Australian Bar Review 1, 4.
0 Ibid.
0 Ibid.
0 Ibid.
In early November 1838, Plunkett, assisted by Roger Therry, appeared before Chief Justice Sir James Dowling in the first trial.0 The biggest hurdle that the prosecution faced in this trial became the lack of substantial evidence.0 The prosecution was unable to definitively identify their victims. Bone fragments in modern cases can be identified through forensics; however, in 1838 they relied on eyewitness testimony. Some eyewitness statements were inadmissible. Historically, it was illegal for anyone other than a free white settler to testify. The prosecution had significant testimony from a station hand; however, it was not able to be heard. 0 Between the inadmissible testimony and the common understanding of the ‘settler code of silence’, the prosecution was left with limited options.0 One of the witnesses, George Anderson – a convict working alongside others on the station under Hobbs0 — shared his account of what had occurred, specifically that the order to burn the bodies came from Fleming, who was still at large.0 However, this testimony was combated by Dangar, who became a witness for the defence, and testified that Anderson was ‘addicted to lying’ and his testimony should not be considered.0 Dangar had been involved in previous peacekeeping efforts around the region0 and had hired experienced free men and ‘naturalised Aborigines’ to help run his stations to avoid conflict escalating to violence.0 Yet he expressed disappointment that the case had been brought forward,0 and did not renew Hobbs’ employment contract. As a result, Hobbs was never hired as an overseer again.0 Danger also began funding the defence of the perpetrators through the ‘Black Association’ along with other influential people.0 Because of Dangar’s reputation and influence, his testimony held sway with the jury. Additionally, tracking down sufficient testimony that was not corrupted or uncorroborated proved difficult. 0 This meant that the prosecution had little to no convincing proof of who had been murdered or by whom it had been done.0
After two days of arguments, the lack of sufficient evidence resulted in the jury returning an acquitted verdict after only fifteen minutes of deliberation.0 Plunkett did not let this diminish his resolve; instead, he successfully applied to have the prisoners remain in custody in lieu of further charges.0 Due to his earlier decision to only prosecute two of the murdered men’s cases, Plunkett could file new charges against the accused of other separately considered deaths.0 Additionally, he sought to charge seven of the eleven to improve his chances of conviction.0 Initially, the accused men entered the plea of autrefois acquit – a legal term meaning an individual has already been tried and acquitted of the same crime.0 However, it was determined that the second trial could go ahead due to Plunkett’s perseverance and compelling arguments in sustaining the indictments.0
0 McLaughlin (n 24) 4.
0 Ibid.
0 Smith (n 15) 112.
0 McKibbin, Connors and Harmes (n 5) 230.
0 Ryan (n 2) 3.
0 Withycombe (n 21) 119.
0 Ryan (n 2) 13.
0 Ibid 4.
0 Ibid 11.
0 Ibid.
0 Tony Earls, Plunkett’s Legacy: An Irishman’s contribution to the rule of law in New South Wales (Australian Scholarly Publishing, 2009) 91.
0 Ryan (n 2) 11.
0 McKibbin, Connors and Harmes (n 5) 229.
0 Ryan (n 2) 11.
0 McLaughlin (n 24) 4.
0 Ibid.
0 Ibid.
0 Ibid.
0 Merriam-Webster Dictionary (online at 13 May 2022) ‘autrefois acquit’ (def 1).
0 McLaughlin (n 24) 4.
