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The Myall Creek massacre: the trial and aftermath

In issue 23 of Inside History, we explored the aftermath the Myall Creek massacre – one of the most harrowing episodes of Australian history, in which up to 28 Aboriginal men, women and children were murdered.

Here, Mark Tedeschi AM QC, the Senior Crown Prosecutor for New South Wales, looks at the trials that followed the massacre, in an extract from the second part of this series. (For an extract of part one, click here.)

In early September 1838, as news spread around New South Wales of the Myall Creek massacre and the arrest of 11 suspects by Police Magistrate Edward Denny Day, colonial society was split. A clear majority took the position that the Aborigines were “lawless savages” who needed to be driven off the land so that the colony could continue to expand unhindered.

The issue provided a rare focus of unity between free settlers and convicts. Only a small minority considered that this was an opportunity to achieve justice for the victims of a terrible crime and to establish the rights of Aboriginal inhabitants to live without the threat of annihilation.

Meanwhile, the ringleader of the massacre, John Henry Fleming, continued to evade Magistrate Day’s searches for him.

The prominent Sydney Herald strongly supported the prisoners, advancing views that were widely held in the community at the time:

We want neither the classic nor the romantic savage here. We have far too many of the murderous wretches about us already. The whole gang of black animals are not worth the money the colonists will have to pay for printing the silly court documents on which we have already wasted too much time.

On 15 November 1838, the 11 men who had been rounded up and charged by Magistrate Day stood trial in the Supreme Court of New South Wales before the Chief Justice, Sir James Dowling, and a civil jury of 12 freemen. The case was prosecuted for the Crown by none other than the Attorney General, John Hubert Plunkett, and his junior Counsel, Roger Therry.

The prisoners faced two charges: “the wilful murder of one Daddy, an Aboriginal Black native” and the murder of “an Aboriginal Black to the Attorney General unknown”…

On the second day of the trial, the Chief Justice summed up the case for the jury in an exemplary and balanced manner. He told the jury this:

It is clear that a most grievous offence has been committed; that the lives of nearly 30 of our fellow creatures have been sacrificed. In order to fulfil my duty, I must tell you that the life of a Black is as precious and valuable in the eyes of the law as that of the highest noble in the land…

The point you have just to determine is whether Daddy was the unfortunate man who lost his life as set forth in the indictment, or whether a man whose name is unknown to the Attorney General came to his death by violent means from the prisoners’ hands.

Attorney General Plunkett knew the trial had gone well, but he also knew that there was a tremendous amount of discontent in the community at the prosecution. Would the jury convict the prisoners — 10 of them white — of the murder of Daddy or of an unknown Aboriginal man? A mere 15 minutes after retiring to consider their verdict, the jury returned to court and announced verdicts of not guilty for all accused.

Plunkett was appalled. In disgust, he immediately announced that he would be putting the accused on trial for a third murder — this time for the death of an Aboriginal child. This was something that would never occur today, where the accused would be charged in the one trial with all the murders arising from the same incident. The Chief Justice remanded all the accused in custody to await a second trial.

On 29 November 1838 the second trial commenced before Justice Burton. An unusually high number of men who had been called for jury service failed to appear, prompting Plunkett to request the judge to fine them severely. There were in fact insufficient numbers to make up a complete jury of 12. This was a good indication of the distaste that many people felt for the case…

The trial took just a day and a half, after which the jury retired to consider their verdict. They returned one hour later. The foreman announced that the verdict was not guilty, however one of the jurors immediately informed the court that the foreman had delivered the wrong verdict and that the correct verdict was guilty. After a suitable enquiry, the judge entered verdicts of guilty.

The sentencing of the prisoners was delayed until after three Supreme Court judges could
hear argument to review the main decisions of law that had been made before and during the trial.

On 5 December 1838 the judges had no difficulty confirming the correctness of Justice Burton’s decisions. After the three judges had dismissed the appeal, his Honour Mr Justice Burton put on “the black cap” and delivered a lengthy judgement. He used the opportunity to make observations that he hoped would have a salutary effect on the whole community of New South Wales. His Honour said (in part):

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.

His Honour then passed sentence of death on all seven prisoners. On 18 December 1838 the condemned men were executed by hanging at the Sydney gaol in George Street. It was later reported that all seven had confessed their guilt at the gallows.

The hangings were met with general hostility from most of the white population. The fate of the four remaining prisoners, James Lamb, John Blake, George Palliser, and Charles Toulouse, hung in the balance.

John Henry Fleming was never noted to have expressed any regrets at his involvement in the Myall Creek massacre. His account in later years of the events of 10 June 1838 bears no resemblance to the facts and was clearly an outright fabrication.

According to Marie Turnbull, a present-day family member who was often told the story by her grandmother, who in turn was told by her mother, Maria Tuckerman (née Fleming), who was John Henry Fleming’s niece, Uncle John would say this:

The cattlemen had been leading the captured group around the bush for a while hoping to attract the real culprits. They were very frustrated at not being able to get their hands on the ones they wanted – when finally deciding they had to do something. It erupted into an act of not being a straightforward act of taking aim and shooting, but a spur of the moment atrocity. 

J.H. Fleming raised his gun and aimed at one particular man who he believed knew more than he was telling them, at first to scare him into talking, so he fired at him, not to hit him, but to scare him. To his shock and horror in a split second, every man with a gun had raised his gun and fired at the same time and kept firing until all the natives were down. John Henry admitted he probably killed one, but claimed he took no part in the mass killing of the others. 

He was so distraught at what had been done that he left almost immediately and rode back to camp. In the morning he went with the men back to the massacre site to see what he could do. [He was] so traumatised and terrified by what he found that he just got on his horse and rode towards home on the Hawkesbury — not on a drunken horse as was written in places later, but at a measured speed to make sure his horse made the desperate ride to his home. However by the time he reached the Hunter area his horse was tiring badly and he decided to call on a relative living in the area, specifically to borrow a fresh horse to continue on his way to Portland Head…

After he arrived back at Portland Head he was sheltered by a number of related families at Wilberforce and Ebenezer… The police never ever came looking for him, which even today is strange. He moved freely about the district, dressed as a woman. Many knew this and no one even considered giving him up to the police… 

It is my opinion that the story of Fleming’s avoidance of arrest is likely to be as inaccurate as the account of the killings themselves.

The only faint echo of any justice in this life towards John Henry Fleming was that he and his wife, Charlotte, could not have children. As he had destroyed so many families and their generations to come, this circumstance was only fitting.

As for John Blake — one of the four men acquitted at the first trial and not subsequently charged — he committed suicide by cutting his throat in 1852. His great great grandson, Des Blake, who has effected a reconciliation with the descendants of the Weraerai, said about his ancestor’s suicide, “Did he have a guilty conscience? We like to think he did.”

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