Murder at Myall Creek

by Mark Tedeschi

  • Simon & Schuster 2016
  • ISBN13 9781925456264
  • ISBN10 1925456269
  • RRP $25 (pb)

Reviewed by Anne Henderson

Author Mark Tedeschi QC writes, in his Preface to Murder at Myall Creek,  that completing his “easily accessible version” of New South Wales’ Solicitor General and Attorney General (1832-1856) John Plunkett’s life story was no simple task. He acknowledges, up front, that it was his friend and literary mentor Alan Gold who kept him at it, especially when Tedeschi became “doubtful about its viability”.

Australians should be grateful. The result is not only a compelling read, but also does long overdue justice to a man of courage and enduring fortitude who was responsible not only for far reaching reforms in early Australia’s judicial and political development but for breaking down barriers between Australia’s Indigenous peoples and its white rulers.

John Plunkett’s role in the trial of eleven convicts and former convicts for the massacre of Aboriginal men, women and children at Myall Creek in 1838 is shown not only to have been courageous in the extreme, and gripping in its ramifications, but also to have been a watershed in colonial baby steps to bring justice to Indigenous Australians.

Tedeschi’s book is almost in two parts – and it is easy to see why he became a bit lost along the way. While the title Murder at Myall Creek suggests the book is a dramatisation of a single event in 1838, the story of John Plunkett and his public life is wrapped into it. Tedeschi has a knack for bringing historical events to life. He admits to having at times “inferred Plunkett’s thoughts, motives and emotions” writing that these are “entirely my own supposition, based upon known facts and my own analysis of the man and his times”.

It works. As the first trial draws to a close, after a verdict of not guilty, Tedeschi re-enacts those moments of tension as Chief Justice Sir James Dowling awaits Plunkett’s answer to his question, “Mr Plunkett, is there any reason why these eleven men should not be released…”

John Hubert Plunkett slowly rose to his feet, stared into the space a few yards ahead, seemingly ignoring the judge on the raised Bench in front of him, as well as his now haughty opponents at the Bar table to his side and the eleven jubilant defendants in the dock. In reality, he was deep in thought, wondering whether what he was contemplating was legally justified, or not. He realised that what he was about to say was probably the most important utterance of his whole career as a lawyer and that he would be judged by society upon it. He paused for an undue length of time, before raising his face towards the Bench with a look of sudden revelation, as though he had only just become aware of the Chief Justice’s presence and question. “Yes, your Honour. There is! These men should be remanded in custody. I intend to present a further indictment against them for murder at the next sittings of this honourable Court.”

There would be another trial – at which Plunkett would separate the accused and bring only seven of them to trial a second time. With trials only allowed for the murder of a single victim, the next trial was for the murder of another victim of the massacre. The verdict this time would be guilty – albeit not before the jury foreman, under extreme pressure, stumbled and announced a “not guilty” result before one of the jurors corrected him.

The events of the Myall Creek massacre, and its various outcomes and legacies, were dramatic in the extreme. Brutal slayings of a peaceful group of 28 Aboriginal men, women and children, some in their mothers’ arms, followed by their bodies being burnt in a pyre; the way the story trickled out and the only freeman in the posse fleeing and saving himself; a  local manager hounded out of his job for going to the police and an Aboriginal boy witness not permitted to give evidence; the colony’s Attorney-General – an Irish Catholic – prosecuting white killers with a bigoted press demanding the perpetrators be released; a petition to have Plunkett removed from his position following the failed appeal against the guilty verdict; on it went in a flame of controversy.

However, Tedeschi is not simply fixed on recreating those events, which he does with gripping detail both from his personal knowledge of courts and their settings but also with the records of both trials and newspaper reports.  Somewhat more importantly, he wants to put on record the life story of a remarkable, if rather dour and unflappable, personality who made history – and was then forgotten.

John Hubert Plunkett’s life story is an exception to cliched and commonplace understandings of British history. He was born in 1802, at the height of Britain’s global Anglo-Protestant dominance. His parents were prosperous Catholic Irish landowners – almost a contradiction in the historical records. He attended Trinity College Dublin and was admitted to the Irish Bar.

Plunkett was also well connected to Daniel O’Connell and the movement for Catholic Emancipation. O’Connell thanked Plunkett with a dinner in his honour for the help he gave the O’Connell candidates in the elections for Westminster in 1830.

As Tedeschi writes: “[Plunkett’s] association with Daniel O’Connell clearly had a profound influence on him, and his views on the rights of all men, regardless of faith or origin, clearly reflected those of his mentor. His time as a ‘shop steward’ for the Catholic Association developed his administrative skills and politicised him as an advocate for human rights.”

For readers of Tedeschi’s book on the Myall Creek murders, the “easily accessible” portrait of John Hubert Plunkett offers a short cut to his life and times in the newly emerging colony of New South Wales. Where larger histories condense time into a series of public moments highlighted by stock figure favourites – either prominent or notorious – the story Tedeschi crafts is closer to the ground, the reader following daily events alongside radical shifts in the law and politics. In a man’s life and achievements, high points and low points, a history of New South Wales emerges.

Indigenous Australians were not permitted to take part in trials to give evidence, not because they were regarded as sub-human but because – in an age of deep belief in the Bible – they were regarded as unable to swear on a book they had no faith in. This affronted Plunkett who saw it as being a way of saying that Aboriginal men and women could not be relied on to tell the truth. To others, however, it was believed that the Bible’s teaching of an afterlife pressed white witnesses not to perjure themselves out of a fear of hell and damnation. Aboriginal Australians had no such perception.

Plunkett’s career in Sydney and New South Wales came at a time of significant change in British politics. That he could have been given such a prestigious – albeit on empire fringes – position as an Irish Catholic says much about the lack of talent in the penal colonies and interest from the UK as it says about Plunkett’s willingness to try his luck so far from home.

Only after the trials of the Myall Creek gang did Plunkett consider returning home – and looking for an opening there. While he found nothing suitable, Plunkett was instrumental while away in lobbying for the Colonial Evidence Act which empowered individual colonies the right to allow Aborigines to give unsworn evidence in court. On his return to NSW, Plunkett’s bills to enable Aborigines to give evidence were defeated in the Legislative Council in 1844 and 1849. It would not be until 1876 that NSW allowed Aboriginal Australians to testify under oath.

This forgotten figure in Australian history was a controversial one but recognised on his death as a force for significant reform during his time as Solicitor General and Attorney General. His desire to become the NSW Chief Justice never eventuated and Tedeschi opines that this failure to appoint a Catholic to the position was a “lost opportunity” on the part of Governor Gipps who handed over the decision to the Legislative Council where Plunkett did not have the numbers. As Tedeschi sees it, for Plunkett, the “idea of a Catholic taking office as Chief Justice anywhere in the British Empire appealed to his sense of vindicating history”.

Plunkett served NSW well. He was a force behind the changes to public education, the founding of the University of Sydney, the founding of Sydney Grammar School and the establishment of the Sisters of Charity’s St Vincent’s Hospital. He was the first Queens Counsel appointed in Australia. However, Plunkett could be single-minded and where that was his strength in the Myall Creek trials it would bring his stellar career to a sudden end in 1857 after a row with Premier Cowper over funding for public schools. Plunkett was forced to resign as Chairman of the National Schools Board. He would then resign as President of the Legislative Council, as a member of the Council and as a Justice of the Peace. As Tedeschi writes: “Plunkett’s petulance and his failure to accept the realities of modern-day responsible government resulted in him losing what was probably his most treasured post.”

In June 1856, at a dinner, the judges of the Supreme Court paid tribute to Plunkett’s 24 years as Solicitor General and Attorney General with the Chief Justice saying:

When the contests shall have passed away, and the voices of friendship and calumny have been like silenced by death, and the grave has closed over the generations which now know us, there will be no name recorded by the pen of history, in Australian annuls, with juster or more endearing praise than that which belongs to Mr Attorney General Plunkett.

In a somewhat ironic twist of fate, it would not be Plunkett’s many reforms as Attorney General and the pens of historians that would restore his name down the annuls of the years. Instead, John Plunkett has risen from the dust because of his heroic stand for justice in the 1838 trials of the white murderers of Aborigines at Myall Creek. Coupled with this compelling retelling of that story by Mark Tedeschi QC over a century and a half later.

Anne Henderson is Deputy Director of The Sydney Institute and author of Menzies at War, which was shortlisted for the 2015 Prime Minister’s Award for Australian History