December 27.
“A Portrait of Australia With Important Bits Missing” by Glenn Loughrey
Two anecdotes of Law
“The trial miscarried because Dore could not allow the Aboriginal witness to give evidence.”
On 10 October [1799] two days before the criminal court was due to meet, the colony’s Judge-Advocate, Richard Dore, was preparing the indictments (charges) against the five Hawkesbury men* awaiting trail in Sydney [for the murder of two young Indigenous males called Little George and Jemmy]…Dore had just sixteen months experience in the colony, but he was well appraised with the Governor’s determination on this subject – the men should be charged as if they had murdered two white people. Earlier that year, in February, Dore had presided over the trial of Thomas Hewitt. The charge he had written then was ‘the wilful murder of Willi Cuthie (a native)’. [1] The trial miscarried because Dore could not allow the Aboriginal witness to give evidence.** So there was no prosecution case to answer because the only potential witness was also a native, Willi Cuthie’s wife.
The record of Hewitt’s trial that day is extraordinarily brief. Dore read out the charge of wilful murder to Hewitt who pleaded ‘not guilty’. But the trial could go no further. The record then states:
No Prosecutor appearing and the native widow of the deceased being incapacitated from giving Testimony as could be admissible in Law to affect the Life of the Prisoner, he was by the Court. Acquitted.
…Dore’s ruling was based on one clear fact. Willi Cuthie’s widow could not take the oath, a preliminary necessity in giving evidence. As she did not believe in God (the God represented by the Bible she would hold), swearing to tell the truth would mean nothing to her.
Court of Criminal Jurisdiction Minutes of Proceedings, 1798-1800, State Records N.S.W., X905-68, 90. R. v Hewitt, 1st February 1799.
Acknowledgment: Lyn Stewart, Blood Revenge: Murder on the Hawkesbury 1799, Rosenburg Publishing, Dural, 2015, pp. 87-88, 233 (ch.5) n.1
* Lyn Stewart’s great, great, great grandfather, Edward Powell, was one of the accused.
** On the theme of incapacity of Indigenous witnesses to give evidence note the entries at 31 July, 14 August, 16 September, 17 October, 21 November, 3 December and 28 December.
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“Until this case, no judge had been obliged to state the common law doctrine on which Aborigines' dispossession rested...”
From 1968 to 1971, the residents of Yirkala Mission, encouraged by Methodist clergy...[litigated] the Commonwealth government's permission to mine the reserve. Until this case, no judge had been obliged to state the common law doctrine on which Aborigines' dispossession rested, simply because no Aboriginal people had briefed counsel to present their customs of ownership for adjudication. Responding to the Yolngu in 1971, Justice Richard Blackburn invoked a judgment from 1889 – not a case involving Aboriginal interests – that Australia is a 'settled' colony, meaning that there was no law in Australia until the colonists introduced British law and then passed their own laws. Conventional narratives of Australian history had so marginalised Aborigines' prior occupation and resistance to invasion that they offered scarcely no factual challenge to this legal fiction. By forcing a judge to spell out the fiction, the Yirkala plaintiffs drew attention to its moral and factual weaknesses. Many Australians thought it unfair that Yolngu wishes could be doctrinally dismissed. If there were no Aboriginal property rights unless they were created by British-Australian law-makers, then law-makers had a choice: tell the plaintiffs to reconcile themselves to dispossession as the price of their improvement or legislate Aboriginal title in Arnhem Land.
Acknowledgment: Tim Rowse, Indigenous And Other Australians Since 1901, p. 294.