A politics of prosecution: the conviction of Wonnerwerry and the exoneration of Jerry Durack in Western Australia 1898 (original) (raw)

‘They were subject to our laws’: Aboriginal defendants in NSW courts 1850–1914

History Australia, 2020

We now know a good deal about how Indigenous peoples came to be British legal subjects in settler colonised Australia. But we know very much less in any systematic way about the experience of Aboriginal accused, especially in the eastern half of Australia. A significant barrier to understanding the presence of Aboriginal defendants in colonial courts has been their common erasure from official statistics. Laborious historical investigation is essential to advance any understanding of the frequency of appearance of particular populations, or indeed of any patterns of process and outcomes affecting such. This article reports the outcomes of a systematic reconstruction of the prosecution of Aboriginal defendants. Drawing on Prosecution Project data systematically recorded for all criminal trial events in New South Wales between 1850 and 1914, I establish identity through information available in court records, colonial newspapers and police gazettes. I analyse the crimes for which defendants were prosecuted, and their consequences including both convictions and acquittals, and resulting sentencing outcomes. The discussion of results will focus on questions of justice and fairness in legal procedure as they are discoverable in this history.

Race and Justice in an Australian Court: Prosecuting Homicide in Western Australia, 1830–1954

Contemporary rates of incarceration of Indigenous peoples in Australia are generally seen as quite recent in origin, an unwanted outcome of the emergence of Indigenous people into full citizenship from the 1960s. Yet for only relatively short periods were Indigenous people in Australia excluded from the full implications of the rule of law in its mode of criminal jurisdiction; for the most part, they were considered British subjects. Having been brought into criminal jurisdiction how did they fare? While much can be learned from archival research at the case level, we propose here that qualitative studies are best examined in quantitative context. In this article, the first ever quantitative study of Australian homicide over long periods of time, we consider how criminal justice worked for Indigenous and non-Indigenous defendants, identifying how many defendants in each group were prosecuted, and their varying treatment at trial process, outcome and sentence.

A True Crime Tale: re-imagining Governor Arthur's Proclamation to the Aborigines

M/C: A Journal of Media and Culture, 18 (6): online. ISSN: 1441-2616, 2015

In the late 1820s in Van Diemen’s Land (now Tasmania) approximately 100 Proclamation Boards were produced by the Lieutenant Governor of the day, George Arthur. The purpose of these Boards, four-strip pictograms outlining crime and its consequences, was to communicate, to the Indigenous peoples of the island colony, that all – black and white – were considered equal under the law. Murderers, be they Aboriginal or colonist, would be punished. The Board is a re-imagining of a traditional method of communication for Indigenous peoples; the leaving of drawings on the bark of trees. The Board itself would be re-imagined and, in the 1860s, presented as the output of Lieutenant Governor Davey. So effective was this re-imagining that the Board, today, is popularly known as Governor Davey’s Proclamation to the Aborigines with the date modified, to 1816, to fit the new narrative. The Board was, subsequently, re-imagined in a range of popular media. This paper offers yet another re-imagining of the Board, positing that this early “pamphlet” on justice and punishment actually presents as a pre-cursor to the modern Australian true crime tale.

Aborigines, Europeans and the criminal law

Aboriginal History Journal, 2011

On successive days in April 1888, James Comes and William Hugh Nicholls appeared at the Northern Circuit Court in Townsville, charged with violent offences committed against Aboriginal women. Although the two cases were unrelated, both men came from the mining community of Thomborough on the Hodgkinson River, and both trials resulted in convictions and prison sentences for the accused. At the time, the results of the trials were considered so extraordinary that they prompted the presiding judge, Mr Justice Cooper, to remark that he supposed Comes and Nicholls were the first two men in Queensland to be 'found guilty of an offence against a member of the aboriginal race'.1 An analysis of the trials in their social context not only offers some conclusions as to why the two convictions were obtained in 1888, but also provides insights into the workings of the legal system, the changing European attitudes to Aboriginal policy and the relations between black and white on the mining frontier during the period. The conviction of James Comes had its genesis at the Union Camp, where Comes had been living along with sixteen or seventeen other Europeans. The Union was about sixteen miles from Thomborough, a town which at the height of its economic prosperity in 1877 had a population of one thousand, as well as a school, two banks, a hospital and a school of arts. By 1888, however, Thomborough was in decline. In that year the combined European and Chinese population of the entire Hodgkinson field was estimated at three hundred and fifty one. This consisted of one hundred and four Chinese, of whom fourteen were miners and ninety were engaged in business and gardens, and the rest Europeanssixty-two quartz miners, five carters and timber-getters, thirty-four tradespeople and farmers, and one hundred and forty-six listed as women and children.2 Comes was one of the Hodgkinson's carters, although it is likely he was already in gaol when the above estimate was taken. He was born in England and had come to Australia in 1834, aged fifteen. After mining at Ravenswood, probably in the early 1870s,

A Brief Introduction to the Massacre at Mowla Bluff, the Kimberley,

We examine the circumstances of the little-known Mowla Bluff Aboriginal massacre, led by Western Australian police at Mowla Bluff pastoral station in the Kimberley. It involved a criminal cover-up that extended to the highest reaches of Perth society, including the Police Commissioner. The massacre took place in 1916, barely a century ago, around fifteen years after Federation, what Sir Henry Parkes called ‘a great national government for all Australians’. ‘All’, except for Aboriginal people who continued to be persecuted. No one was charged. There was another massacre at Geegully Creek, Mowla Bluff, in 1916. This, Nyikina Elder John Watson said, was a punitive expedition by police and other colonists that took place after a station manager, George ‘George’ Why, was assaulted by some Mangala people over a small dispute. It was not the first massacre in Kimberley, and it would not be the last. The killings began when pastoralists first streamed into the area from the early eighties, forming a pattern of violent behaviour that found its allegiance in racism and greed. More indiscriminate state-sanctioned killings in northern Australia were to follow that at Mowla Bluff, at least up to 1928, when the last officially condoned massacre took place at Coniston in what was then called Central Australia under similar circumstances to Mowla Bluff. There were no convictions. But that was normal for a racist justice system. We consider the question, was the Mowla Bluff massacre an instance of Lemkinian extermination throughout the Kimberley, what we now call crimes against humanity under the 1998 Rome Statute? We conclude, yes.