IV THE SECOND TRIAL – FINALLY GUILTY

Sitting before Justice William Burton in late November 1838, Plunkett and Therry sought to prosecute seven men for the Myall Creek Massacre, specifically the death of an identified child.0 Within the second trial, the original evidence was heard; however, the prosecution was also able to uncover that some landowners in the area had used several tactics to sanction ‘the extermination of the native peoples’.0 While the evidence had not changed drastically and similar obstacles from the first trial existed, the fact that the victim was identified, and more testimony was included aided the result. Additionally, Dangar’s defence testimony was not as effective.0 In his closing statement, Justice Burton made it known he believed in the defendant’s guilt.0 Considering the legal arguments and the evidence shared, the jury found the accused men guilty of five out of fifteen charges.0 Although not a full conviction, or charges for all the victims, this verdict meant that some justice was to prevail for those affected by the massacre.

V Sentencing

Following the trial, on 5 December, Judges Dowling, Burton, and Stephen of the Supreme Court considered but ultimately rejected, the appeals made on behalf of the accused, sentencing the seven men to death by hanging.0 While awaiting their final penalty the accused men admitted their guilt and shared ‘it was done … in defence of their master’s property’,0 despite their early claims of being unaware of the illegality of their actions.0 Governor Gipps managed to withstand significant pressure to pardon the guilty men from their impending death, and their sentence was carried out on 18 December 1838.0

A significant takeaway from this case was the rarity of white men being found guilty and their sentence carried out for their crimes, particularly those against First Nations Peoples.0 Newspapers at the time shared community fears that this would lead to an increase in white settlers being held to account for their illegal actions towards colonial growth and obtaining land.0

Vi Public Opinion

Viewing the actions of Plunkett and Therry from a modern lens, little criticism can be found relating to their official duties in prosecuting the crimes. Most of the criticism stems from public outrage towards their pursuit of justice. Filing the initial charges in the first trial, following it up with a second round of indictments, and then persevering until final judgment and sentence were affirmed, Plunkett became a despised figure within the community. 0 He was not despised by those he sought to defend but by those who were ‘suffering’ as a result of his desire to change how the rule of law was enforced. 0 This suffering is interpretable, as many white settlers felt justified in their actions and believed they were above the law’s grasp.0 During the early years of Australia, squatting was considered a highly profitable business – squatting was an early settler concept of moving grazing herds onto land owned by the Crown or First Nations Peoples illegally.0 In this case, many settlers did not welcome the interference from the ‘law’ on how conflicts they endured with the First Nations Peoples should be dealt with.0

0 McKibbin, Connors and Harmes (n 5) 229.

0 Ibid.

0 McLaughlin (n 24) 4.

0 Ann Curthoys et al, ‘Forum: The Myall Creek Massacre of 1838: Genocide, War Crimes, Crimes Against Humanity?’ (2018) 5(1) Law & History 146, 147.

0 Ibid.

0 Ibid.

0 Withycombe (n 21) 120.

0 John Connor, The Australian Frontier Wars 1788–1838 (University of New South Wales Press, 2002) 112.

0 Ibid.

0 Rebecca Wood, ‘Frontier Violence and the Bush Legend: The Sydney Herald’s Response to the Myall Creek Massacre Trials and the Creation of Colonial Identity’ (2009) 6(3) History Australia 67.1.

0 Ibid.

Many scholars have presented the viewpoint that the negative public opinion was swayed by those with financial power and influence, particularly as they aligned with the general interests of the colony.0 It was also suggested that some witnesses, who may have been eligible under the law to give testimony in the trials, were led to believe by those same people of influence they would not be safe should they do so.0 Witness tampering by the wealthy and influential was just one element of shielding the guilty.0 Public outrage was not limited to the prosecution: it was said that the foreman on the second trial was subjected to abuse for being a part of convicting white men.0 Not all colonists shared this viewpoint, as newspapers such as The Australian received noteworthy letters from allies of the verdict.0

Vii Legal Change

The impact that these cases had on Plunkett extended throughout his career with many continuing to show hostility towards him; however, Plunkett was resolved that he would be ashamed if he acted any other way.0 Plunkett progressively believed that everyone should be held accountable in the same way under the law.0 This was the foundation of his views on exconvicts being involved on juries, but specifically, in this case, it fuelled his campaign to change New South Wales’ law to enable First Nations Peoples to give evidence.0 Plunkett’s struggles to secure a conviction on all the perpetrators of the Myall Creek Massacre was due to his inability to put the key eyewitness testimony of Davvy – an Indigenous station hand –forward as evidence in the trials.0 Plunkett fought for years to change this law, as the ongoing mass killings of First Nations Peoples were difficult to prosecute without these vital firsthand accounts.0

This was a struggle for the government, which continually failed to develop and implement sufficient legislation that would allow the testimony of First Nations Peoples to be heard. The Legislative Council were under the impression that, as First Nations Peoples did not believe in God, an oath could not be taken and they were incompetent witnesses. 0 One member who passionately fought to keep the status quo was William Wentworth, who argued that it would

0 Ibid.

0 Ibid.

0 Ibid.

0 McKibbin, Connors and Harmes (n 5) 228.

0 Smith (n 15) 113.

0 Ibid.

0 Withycombe (n 21) 121.

0 Ibid.

0 Smith (n 15) 113.

0 Ibid.

0 Withycombe (n 21) 121.

0 Ibid.

0 Ibid.

0 Ibid.

0 Ibid.

0 Andrew Tink, ‘The 2007 Forbes Lecture’ (2009) 32 Australian Bar Review 316, 320 not be appropriate to have the ‘chattering’s of … this savage race’ in a court.0 Thankfully many found his public statements on this subject as indefensible as they would be today; however, there were still those who shared his views.0 This is believed to be a significant failure on the government’s part and one of the ‘saddest stains on the history of New South Wales.’0

Myall Creek and similar massacres helped reflect the legal inconsistency and limbo-like state that Australia was in.0 The understanding that the rule of law for the colony meant being mistreated by law and authority, coupled with ignorance and lack of basic human rights, would slowly be acknowledged and improved over time.0 During the Myall Creek trials, Plunkett stressed that this matter was about murder and ‘ignorantia juris non excusat’ – that being ignorant of the law does not make you less liable.0 The early government accepted British law as the prevailing power; however, the interpretation of and resistance to that law led to a misuse of power and authority.0 This can be seen in the disastrous implementation of ‘Aboriginal Protectors’ within the colony.0 The struggle for the protection of fundamental rights and equal recognition under the law has taken time to be fully recognised, such as the adoption of the Universal Declaration of Human Rights in 1948, along with the changes in governing systems and the concept we know today of everyone getting a ‘fair go’.0

Viii Systematic Racism

Another major hurdle was the bias of juries. The systemic racism that occurred in the Myall Creek trials was appalling. Upon exiting the courthouse from the first trial, one juror is reported to have said he knew they were guilty but refused to sentence a white man to hang for such a crime, stating: ‘I look on the blacks as a set of monkeys … and the earlier they are exterminated from the face of the earth the better.’0 This horrendous and indefensible statement was not uncommon during this period. Unfortunately, racism fuelled a significant amount of the violence and negativity that came when interacting with First Nations Peoples. For example, when discussing the land rights of First Nations Peoples, a report from the Select Committee described them as ‘barbarous,’ ‘destitute,’ lacking ‘civil polity,’ and for those reasons, any claims to land or sovereignty should be ignored.0 This has been a challenge that Australia is still battling, with current government bodies continuing to claim that First Nations Peoples’ sovereignty has not, does not and cannot ever exist. 0 The historical viewpoint that sovereignty ‘could never be exercised, claimed, or granted to a people who did not live in properly constituted societies’0 has been ingrained in the culture of Australian society, and not in a positive way.

Contemporary scholars have also begun debating whether Myall Creek and similar crimes were a form of genocide or a war crime.0 No consistent view has been established with arguments for, against,0 and, even some, opposed to the unnecessary discussion.0 Regardless of one’s viewpoint, the actions of white settlers and the impact made by them have deep routed repercussions that have echoed through the history and development of Australia. They will continue to envelop our culture and story moving forwards. The Myall Creek Massacre and trials ‘intensified racial tensions’0 which prompted a culture of secrecy.0 Because officials were unaware of legal outcomes or the public reactions it hindered any pursuit of similar cases for decades.0 Ultimately, when reminiscing about his involvement in the case, Therry was adamant that 'justice was not fully satisfied'.0

0 Ibid.

0 Ibid.

0 Smith (n 15) 113.

0 James Triggs, ‘Authority, Democracy and the Rule of Law’ (2008) 30 Australian Bar Review 221, 224.

0 Ibid.

0 Ibid; Merriam-Webster Dictionary (online at 13 May 2022) ‘ignorantia juris non excusat’ (def 1).

0 Triggs (n 78) 224.

0 Wood (n 57) 67.4.

0 Triggs (n 78) 224.

0 The Australian (Sydney, 8 December 1838) 2, quoted in McLaughlin (n 24) 4.

0 Connor (n 55) 112.

0 Bruce Buchan, ‘Aboriginal Welfare and the Denial of Indigenous Sovereignty in Australia’ (2002) 20(1) Arena Journal.

0 Ibid.

0 Curthoys et al (n 51) 148.

Ix Conclusion

The perpetrators of the Myall Creek Massacre undoubtedly acted unjustly and illegally. Yet, the historical accounts of the trials reveal significant difficulties felt by the prosecution, which included distance, minimal evidence, witness intimidation, public pressures and biased jurors. These elements allow one to see the injustice. First Nations Peoples during colonisation were indeed treated unjustly, and in many cases continue to be treated this way. When specifically asking if justice occurred in the Myall Creek case, one only must look at the words of Therry, ‘justice was not fully satisfied.’ Yes, some were held accountable, but not every victim was given a voice, and not everyone involved was held responsible for those deaths. This is purely linked to the indefensible ‘less than’ concept that many white settlers had towards First Nations Peoples. The Myall Creek Memorial committed to gathering at the site with descendants of victims and perpetrators in remembrance of what occurred and to work together for a better future.0 This is something every one of us can also strive for.

0 Ibid.

0 Ibid.

0 Lydon (n 8) 120.

0 Jane Lydon, ‘Anti-slavery in Australia: Picturing the 1838 Myall Creek Massacre’ (2017) 15(2) History Compass 8.

0 Ibid.

0 Withycombe (n 21) 106.

0 Ibid 148.