In 1838, eleven convicts and former convicts were put on trial for the brutal murder of 28 Aboriginal men, women and children at Myall Creek in New South Wales. The trial created an enormous amount of controversy because it was almost unknown for Europeans to be charged with the murder of Aborigines. It would become the most serious trial of mass murder in Australia’s history. Mark Tedeschi AM QC is a former Crown Prosecutor in NSW and the author of Murder at Myall Creek: The Trial That Defined a Nation. On Thursday 17 October 2019, Mark Tedeschi addressed The Sydney Institute to detail some of what he discovered about the massacre when writing his book.

MYALL CREEK MASSACRE: THE TRIAL THAT DEFINED A NATION

MARK TEDESCHI

The horrific murders of 28 Aboriginal men, women and children at Myall Creek Station near the present-day town of Bingara on 10 June 1838 has come to represent the multitude of massacres of indigenous people that occurred all over Australia during the colonial period. The reason for that is because we know more today about the murders at Myall Creek than any of the hundreds of other massacres. We know so much today about this one largely because of the investigation and the trials of 11 of the 12 perpetrators that were conducted in 1838 in what is now called the Old Supreme Court building in King Street, but was then the brand-new, Francis Greenway designed Supreme Court building. The man who successfully prosecuted the two trials of those responsible for the massacre was the then Attorney General of New South Wales, John Hubert Plunkett. It was, in my view, the greatest challenge and the most remarkable achievement in his long and illustrious career.

we know more today about the murders at Myall Creek than any of the hundreds of other massacres.

There were in fact two trials that arose from the massacre, and both provoked an enormous amount of controversy and hostility throughout the colony towards the prosecutor. The powerful forces of the landowning settlers were pitted against Plunkett and caused him endless difficulties. The newspapers of the day were almost entirely hostile to the trial. Plunkett’s approach to these prosecutions was both innovative and bold in equal measure. He faced massive difficulties in overcoming bigotry and the vested interests of the landowners and, in many respects, he had both hands tied behind his back. His biggest practical hurdle was that despite the fact that there had been an eyewitness to the massacre – the indigenous station hand Yintayintin (known to Whites as Davy) – the law at that time prevented this young man from giving evidence in court because, as a non-Christian, he was unable to take an oath. Plunkett spent the next twenty years trying to remedy this serious deficiency in the law – but without success. New South Wales was, in fact, one of the last jurisdictions in Australia to allow Aboriginal witnesses to give evidence in court.

Plunkett’s approach to these prosecutions was both innovative and bold in equal measure.

It is instructive to look closely at the long-term effects of the 1838 Myall Creek murder trials. The trials marked one of the few times in the history of Aboriginal displacement that Europeans were punished for the murder of Aboriginal Australians. Those trials stand as an early statement of principle that Australian courts had at least the capacity to operate without fear or favour and to treat all people equally, including those on the periphery of white society. That is not to say that the law always operated in this way, or even that it frequently did during the colonial period; but on the occasion of the Myall Creek murder trials it certainly did. Plunkett’s advocacy and tactics at the second trial succeeded in persuading a jury of twelve white, free men and freed men (ex-convicts) to convict seven white defendants for the brutal slaying of one of the victims, an Aboriginal child whose red bone had been found at the scene, and who represented the twenty-eight members of that infant’s tribe who had been murdered. That Plunkett was able to do this in the face of almost universal hostility to the prosecution was nothing short of miraculous. It would never happen again during the colonial period, or even after the federation of the Australian States in 1901.

The trials marked one of the few times in the history of Aboriginal displacement that Europeans were punished for the murder of Aboriginal Australians.

That Plunkett was able to do this in the face of almost universal hostility to the prosecution was nothing short of miraculous.

Tribute should also be paid to others who did the right thing, thereby exposing themselves to society’s wrath, and worse, in 1838:

• Yintayintin (Davy), the Aboriginal station hand employed at Myall Creek, who followed the perpetrators at a distance whilst hidden in the bush and personally witnessed the murders, so that he could report back to hut keeper George Anderson. Months later Yintayintin paid for his actions with his life;

• George Anderson, the convict hut keeper on Myall Creek Station who attempted to persuade the perpetrators not to commit the atrocity, and who later bravely gave evidence against them in both trials;

• William Hobbs, the Station Manager of Myall Creek Station, who was so horrified at the massacre that he reported it in writing to the Governor and the nearest Magistrate, and who was repaid for his actions by being sacked by his employer, the owner of Myall Creek Station, Henry Dangar;

• Police Magistrate Captain Edward Denny Day, who conducted an exemplary and thorough investigation of the incident and managed to arrest and charge eleven of the twelve perpetrators (all but the ringleader, John Henry Fleming) and bring them to Sydney for trial;

• the trial judge at the second trial, Justice William Westbrooke Burton, who reinforced to the jury the sanctity of all life, including indigenous ones, and thereby set the tone for a fair and just hearing;

the twelve white jurors in the second trial who were brave enough to convict the seven defendants in the face of hostile public opinion; and especially juror William Knight, who spoke up to correct the initial, incorrect verdict of acquittal, so that convictions were properly recorded against those seven defendants.

the twelve white jurors in the second trial who were brave enough to convict the seven defendants in the face of hostile public opinion

There is no doubt that the two trials failed to stem the tidal wave of annihilations of the Aboriginal inhabitants of Australia. The hangings of seven of the perpetrators in December 1838 merely served to drive future murderous acts underground, so that more surreptitious means, such as poisonings, were used instead of brutal, bloody slayings by sword or bullet or herding over cliffs or into swamps. However, one cannot assess the significance of the Myall Creek murder trials merely by that measure, just as one cannot assess the success of the Nuremburg trials after the Second World War by the number of genocides that have occurred since in various parts of the world.

In my view, the two trials in 1838 were more akin to modern-day war-crimes trials than to domestic murder trials, even though the concept of war crimes lay more than a hundred years in the future. There was undoubtedly an ongoing, internal, frontier war at the time, albeit rather one-sided, between the white settlers and the indigenous inhabitants whom the former were attempting to displace and disperse. The war against the indigenous population involved a systemic policy, often approved or acquiesced in by white authorities, of unlawfully eliminating those Aboriginal people who stood in the way of the expansion of English settlement or posed a threat to white pastoralists and their stock. In my view, the perpetrators of the mass murders at Myall Creek Station on 10th June 1838 were motivated by genocidal intentions and their actions were an example of what we now call “ethnic cleansing”. The fact that almost the whole tribe was decimated – including old men, women and children – demonstrated only too clearly their genocidal intent. The subsequent sexual abuse of one female indigenous victim, whose life was spared for what must have been a few excruciating days, illustrated the objectification of the victims. Recent history has shown that sexual violence often goes hand-in-hand with genocide, and that is why systemic sexual offences against enemy populations in war zones are now categorised as war crimes.

In my view, the two trials in 1838 were more akin to modern-day war-crimes trials than to domestic murder trials, even though the concept of war crimes lay more than a hundred years in the future.

In addition, the actions of the perpetrators can be viewed as a classic example of what has become known as “collective punishment” – a form of retaliation that became highly refined at the hands of the Nazis – whereby a suspected offender’s neighbours, community or ethnic group is targeted for punishment, and where the punished group may have had no direct association with the act that is being punished. The victims in this case had been living peacefully on Myall Creek Station for several months and had done nothing to justify their victimisation. Collective punishment has been categorised as a war crime since the 1949 Fourth Geneva Convention and genocide has been categorised as an international crime by the Genocide Convention that was adopted by the United Nations General Assembly in 1948 and came into force in 1951.

The victims in this case had been living peacefully on Myall Creek Station for several months and had done nothing to justify their victimisation.

By modern-day standards, the actions of the Myall Creek murderers were part of a deliberate, state-sanctioned genocide of the Aboriginal people that today would be punishable as a war crime by the rules of international criminal law. The fact that vast numbers of genocidal murders in colonial Australia went unpunished would today provide evidence of state sanction that would justify international intervention in the prosecution of the perpetrators and their national leaders. While such laws did not exist in 1838, the approach taken by John Hubert Plunkett towards the case was consistent with them and demonstrated an enlightened and visionary attitude that was unparalleled in his time or for more than a century afterwards. John Plunkett did not just prosecute eleven men for murder. He implicitly prosecuted his entire society for its connivance in the attempted annihilation of the Aboriginal people, the forced expropriation of their lands, their dispersal from country, and the destruction of their culture. His contemporaries, consciously or subconsciously, appreciated these facts, and as a result vehemently resented him during the trials and in some cases for years afterwards. It was a testament to his perseverance and tactical skills that he convinced twelve jurors to convict seven of the perpetrators, because they were not only potentially condemning those men to their deaths, but also stingingly rebuking their own society. While the trials and the convictions did not prevent future massacres, they stand as a beacon of interracial justice that illuminated the path for Australia to later develop as a civilised and tolerant nation.

John Plunkett did not just prosecute eleven men for murder. He implicitly prosecuted his entire society for its connivance in the attempted annihilation of the Aboriginal people

Modern Australian schools, both primary and secondary, have devoted considerable time to teaching about the great, white explorers: people like John Oxley, Charles Sturt, and Major Thomas Mitchell. Only few schools, however, teach what almost invariably happened within a few years of the discoveries of those great explorers: the expansion of white pastoral interests into areas that had been occupied for millennia by indigenous clans; the forced expropriation of their land; the degradation of native bush by the introduction of domesticated animals and European horticultural practices; the disintegration of ancient indigenous cultures; and the massacres of tens of thousands of indigenous people in hundreds of locations throughout Australia.

Only few schools, however, teach what almost invariably happened within a few years of the discoveries of those great explorers: the expansion of white pastoral interests into areas that had been occupied for millennia by indigenous clans

In my opinion, the full account of what happened to the aboriginal inhabitants in colonial times should be taught in our schools as readily as we teach the exploits of the great explorers.

The two accounts are inextricably intertwined because one almost inevitably followed the other. A real acceptance by mainstream Australia of the horrors that were perpetrated against our indigenous communities in the colonial period will bring with it an understanding of the long-term trauma that has been transferred through the generations until today. We readily acknowledge that the trauma of other genocides and crimes against humanity can be deeply traumatic for many generations after the killings have ended – such as those perpetrated during the Nazi Holocaust, in the former Yugoslavia during the 1990s, and in other countries like Rwanda and Cambodia. If we readily and openly acknowledge that Aboriginal communities were subjected to massacres in a multitude of locations all over Australia for more than a century, there may arise more sympathy for the current generations striving for equanimity, understanding and acceptance. Until we recognise that what occurred was a war of extirpation or annihilation, until we acknowledge that what was perpetrated amounted to an attempted genocide that today would be categorised as a war crime of the most egregious kind, and until we teach this to children throughout Australia, we will not reach our full maturity as a nation.

If we readily and openly acknowledge that Aboriginal communities were subjected to massacres in a multitude of locations all over Australia for more than a century, there may arise more sympathy for the current generations striving for equanimity, understanding and acceptance.

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