November 21.
Artwork by Glenn Loughrey
Dundalli – Indigenous warrior
Indigenous leader Dundalli and the legal silencing of Aboriginal claims and experience.
The court managed to process the remaining ten criminal cases in just two days – six trials on Monday, 20 November, and four on Tuesday, 21 November [1854]...Two of the trials on the Tuesday were Dundalli's. [1]
...The trial proceeded with Dundalli in chains in the dock and Ralph Barrow in the witness stand. Despite the lack of time to prepare, [barrister Peter] Faucett was familiar with Barrow and the issues of the case, having taken the defence of Mickie before Judge Therry eighteen months previously. His cross-examination proved that Barrow 'had no idea of how long ago the event occurred. He also...did not know the names of any other blacks present'. [2]
...Over the past eight years Barrow had given different evidence at each committal hearing and Supreme Court trial. Therry had presided at three of these trials, yet he undercut Faucett's argument, including [senior Brisbane official] Wickham's testimony, completely. The judge, in his summation of the issues for the jury, insisted that 'from first to last' Barrow 'had maintained that Dundalli had struck the blow which killed Mr Gregor'. It was an extraordinary statement. The clerk of petty sessions had merely to open the Brisbane Bench Book to show that the judge was wrong on the facts. [3] Furthermore, given the propensity of Brisbane juries in these interracial cases to affirm guilt, it was hardly necessary. At the end of a long day, the jury 'retired for a few minutes' before returning with a verdict of guilty. [4] Judge Therry 'with considerable emotion then passed sentence of death'. [5]
...The formal processes of the British court had effectively rendered traditional law and authority invisible. Within its walls Dundalli, a traditional lawman, was recast as a criminal, and his enforcement of its customs as ferocious savagery. The political decision to deny Aboriginal sovereignty had created this inequality and now the formal procedures of British law reinforced it. As a criminal defendant he was required to stand passively in chains while others debated his actions in a language that was not his own. Dundalli – who had studied the southern skies so well that he knew the times when his ancestors wished him to organise a kipper ceremony – could not swear an oath on a Christian Bible. That made the admissibility of his evidence in a court of law, just as it did all Aboriginal defendants until 1876, impossible. [6] He was not even allowed to speak in his own defence. Gentlemen who had never seen him or his country argued over his life while he, as an indigenous defendant, was left mute. Naturally then the newspaper reports of the trial sideline Dundalli the defendant so that he is barely visible in the courtroom. Only Therry's memoirs and a few lines from the bar help us overcome the structural inequality of the courtroom scene so that Dundalli's remarkable physical presence and personal authority can be imagined. These, plus Dindalli's final actions on the scaffold, provide the counterbalance to the distortions of the legal narrative. Applying British law to Australian colonial frontiers undoubtedly saved lives by placing some limitations on settler violence but it also brought a greater injustice, with its ideological cloak that smothered and silenced Aboriginal legality.
Judgment Book, 1851 & 1854, 4/5745-5753, SRNSW.
Moreton Bay Courier, 25 November 1854, p. 2.
Queen v Dundalli, 2 June 1854, Court of Petty Sessions, Brisbane – Deposition and Minutes Book, 07/12/1850-30/12/1854, Series 753, QSA.
Both press reports agree on the very short deliberation of the jury in the Gregor case. MBC, 25 November 1854, p. 2; Moreton Bay Free Press [MBFP], 28 November 1854, p. 2.
MBFP, 28 November 1854, p. 2.
Attorney General Plunkett tried repeatedly in the 1840s to convince the New South Wales Legislative Council and the British Parliament to allow Aboriginal witnesses to give evidence in the law courts. Queensland did not allow Aboriginal witnesses in qualified circumstances until 1876 when the Oaths Act Amendment Bill was passed. Brisbane Courier 16 November 1876, p. 3
Acknowledgment: Libby Connors, Warrior – A Legendary Warrior Leader's Dramatic Life and Violent Death on the Colonial Frontier, Allen & Unwin, Crows Nest, 2015, pp. 186, 188-191, 257 n.14, n.22, n.24, n.25, n.26, p. 258 n.31.