Law, Crime and History
Volume 11, issue 1 (2023): 52-81
© The Author(s) 2023
TAKING DEPOSITIONS AT MOLONG: THE OPERATION OF LEGAL POWER IN 1850s NEW SOUTH WALES
Paula Jane Byrne
State Library of New South Wales, Australia
Depositions, the initial documents of a criminal case, show the interpretation of their task by magistrates and the extent of policing by constables alongside understandings of law by ordinary people. They also show how the Aboriginal subject was countenanced. Molong magistrates attempted zealous adherence to the requirements of the law but their enthusiasm led to them overstepping their allotted role set out in legal texts and the Justice Acts 1850. Constables also exhibited a similar uncontrolled diligence. Ordinary people imagined law could be manipulated to their own ends, but they did so inexpertly and uncertainly. Molong shows one of the cultures developed around law in the mid-nineteenth century and the sheer malleability of what is understood as law.
Keywords: Law, Magistrates, Interpretation, Local, Indigenous
This paper examines the process of creating depositions in the central western town of Molong in Wiradjuri country to locate the way legal power operated there in the 1850s, the period of the early democracy in the colony. In doing so it raises questions about interpretations of the law by its principal actors and the shuffling of persons into the position of defendant or criminal. It does not seek to discuss the reception of legal change or divergences from legal requirements, but the ways in which the law, as it was understood, operated. It concentrates on actors. While there has been extensive recording and analysis of the results of the process of the criminal law and policing, particularly in the Prosecution Project 1 the technical means by which persons came to court have not been considered in Australian history. Legal historians have addressed the adoption of law in the colony and colonial innovation but they have not considered the piecing together of the documents of evidence or the conflict between legal officers.2
Depositions are held at the Archives Office of New South Wales in boxes labelled according to the district in which the offence occurred. Cases are numbered in the order that the defendant appeared at the Supreme Court on Circuit (the Circuit Court) and sometimes a sentence is written in pencil on the cover. No miscellaneous cases survive for this period 1850 -1860, each of these depositions resulted in a court appearance and a decision. Checked against Supreme Court Registers the depositions for these years are remarkably complete and it is possible to build up a regional picture of the operation of the criminal law, the personalities of the clerks of the court, the proclivities of magistrates and the attitude of the Attorneys General. Because of the pencilled notes and underlining present on these depositions it is possible to see the thinking of the actors involved in the creation of a case. The words of constables, witnesses and defendants allow the reader to see how the law was understood and managed, in short, how far law reached into the lives of Aboriginal and non - Aboriginal people.
Molong magistrates and their clerk exhibit a diligence in the task of producing depositions that was not found in other parts of New South Wales in these years. The Bench led by the scientifically minded Robert Barton produced depositions that, unlike other benches, largely adhered to the requirements of the common law and later, An Act to adopt and apply certain Acts of Parliament passed for facilitating the performance of the Duties of Justices of the Peace 1850 and the Justices Act Amendment Act 1853 both of these acts deriving from the Imperial Jervis Acts 1848. However, such diligence also resulted in actions that were outside their express task; they added information in letters, contributed unsworn evidence and thought they, themselves, could be witnesses without proper process. Creative interpretations of the law were also shown by the local population and constabulary. Unlike other places ordinary people at Molong seem to miss the point of the law and while active in court questioning, they were certainly not the astute consumers of legal process found at other benches. Together, along with cases involving Aboriginal subjects, these documents give access to the culture around criminal law in New South Wales in the 1850s. Molong is of particular interest because so much attention was given there to the requirements of a criminal case.
Variations of approach to the task of creating depositions for the New South Wales Attorneys General3 show not only magistrates’ interpretation of court requirements but also the roll out of law on Aboriginal country. Depositions were the preliminary documents in criminal cases drawn up before Magistrates Benches. The documents were sent from the Bench to the office of the Attorney General who decided if there was a case to answer. If there was a case or ‘true Bill’, the documents formed the basis of the Indictment and that document was drawn up on the instructions of the Criminal Crown Solicitor. The case would proceed to trial at the Supreme Court in Sydney or at the Circuit Courts (the Supreme Court on Circuit heard cases at Maitland, Bathurst, Goulburn and Brisbane) or the Quarter Sessions held immediately before the Circuit Courts. Magistrates themselves heard and decided upon summary cases, the records for Molong do not survive. The Supreme Court dealt with offences punishable by death and the Quarter Sessions with misdemeanour, but depositions for both were meant to be set out in the same way.4 Depositions were read out in court and witnesses called to answer questions based on the deposition. They were crucial to the case heard before the court and deviations from the information included in them could result in a case being halted by a Judge and the charge of perjury being mentioned, though at other times deviations were allowed.5 This paper considers the depositions sent to the Circuit Court only. There is more communication evident between different levels of the criminal justice system in those records.
Magistrates and Depositions
There were two kinds of magistrates in the 1850s. The Justice of the Peace was an honorary appointment, without renumeration, and magistrates were selected from local wealthy persons, at this time mainly landholders. Police Magistrates obtained paid positions. John Lowndes writes of the Metropolitan Courts Act 1839 in Britain which ‘marked the establishment of a professional stipendiary magistracy; all appointees of the magistracy had to be a barrister’.6 The appointment of paid or Police Magistrates in New South Wales began in 1832 though there were earlier single appointments.7 The move to a paid magistracy in England was part of a series of decisions to end corruption in the magistracy. That was not the reasoning in New South Wales. Lowndes quotes Hilary Golder concerning Police Magistrates in New South Wales, ‘Ministers were free to appoint relatives, friends, political supporters and even political enemies, many of whom were perfectly competent magistrates.’8 These men were ‘barely distinguishable’ from the traditional Justice of the Peace, an honorary and unpaid position existing from 1788 consisting of local wealthy citizens. The first appointments of Stipendiary magistrates in New South Wales were not until 1881.9 Therefore, in the 1850s while the rights of the accused were protected by the importation of the Jervis Acts 1848 in 1850, those persons who at local level would administer those Acts were not of the same standard of legal training as in England. Justices of the Peace and Police Magistrates were not barristers and they were thoroughly entrenched in local elites. While historians argue that Police Magistrates administered the Master and Servants Act 1823 in ways that were fairer than Justices of the Peace,10 Police Magistrates seem indistinguishable from Justices of the Peace in their style of administration of other criminal cases.11 What Police Magistrates and Justices of the Peace did when they had power and how they and the local community understood law is the subject of this paper.
The precise process to be followed in the constructing of depositions was set out in Blackstone’s Commentaries edited in 1849, in Burns Justice of the Peace and Parish Register (a supplement being published in 1853 following the Jervis Acts), 1835 and in Plunkett’s Australian Magistrate 1847.12 This process was based on prior Acts and the common law and in each of these volumes it is possible to trace the development of the law regarding depositions. The latter texts were specifically designed for Magistrates and the contents of the volumes are organised alphabetically. In 1848 in England the Jervis Acts codified common law in terms of duties of magistrates, essentially for their legal protection. They could no longer be subjected to civil actions due to the decisions they made, nor could their mistakes in documentation result in the dismissal of a case. Eugene Schofield Georgeson has written about the transferral to the colony of the bundle of rights in 1850 associated with the Jervis Acts that adoption was not without local input. Alex Castles, Bruce Kercher and Tim Castle have also shown, that adoption of English law was not always straightforward in the colony of New South Wales.13 Schofield Georgeson writes of the application of the Jervis Acts to New South Wales by vote in the Legislative Council in 1850 and the work of George Robert Nichols in redrafting those Acts with Attorney General John Hubert Plunkett. Nichols furthered the Act by vote of Council in 1853, cleverly obtained late at night and without debate.14 The 1850 Acts introduced refinements to the process of criminal law at the level of magistrates’ hearing of criminal cases. They codified common law fair trial rights. These were, the right to silence (s.18), the voluntariness of confessional evidence including the requirement of a warning against incrimination (s.18), the right for the accused to cross examine prosecution witnesses (s.17), time limits on detention for investigation of eight days (s. 21), bail for all offences except treason (s.23), documentation by magistrates of all cases of imprisonment and the movement of people using warrants (s.24), right to obtain depositions (s.27 and s.3) the right to copies of examination and cross examination (s.3) and the right to appeal (s.12) . 15 The 1853 additions include concern the right for the defendant to cross examine witnesses (s.15) increased powers for paid magistrates who could act alone where Justices of the Peace could not (s.11), appeal to Judges (s.5 and s.10) and ensuring attendance by funding travel of witnesses for the defence (s.14).16 Each Bench handled the process differently and each took note of Plunkett’s Australian Magistrate, Blackstone, Burn’s Justice and the Acts in different ways.
Magistrates had access to these legal texts and were sent copies of the relevant Acts. For example, Edward Ogilvie became magistrate in 1847 at Grafton and immediately obtained himself a copy of Blackstone,17 Blackstone’s Commentaries was mentioned in the press regularly in the 1850s.18 Two Commissioners of the Western Goldfields cited Plunkett’s Australian Magistrate in complaint against their committal for Breach of the Peace at Mudgee in 1854.19 The widespread use of Plunkett’s Australian Magistrate was demonstrated by the Sydney Morning Herald in 1859, ‘Every time a new batch of justices of the peace were appointed, the booksellers were always besieged for a fresh supply of ‘Plunkett’s Magistrate’. The paper announced a new ‘handy…pocket edition…it consists simply of a reprint of the first Sir John Jervis Acts, together with the colonial statute adopting it, with notes by the editor furnishing additional information on colonial details.’20 However, even in 1851 at Wellingrove a prisoner was ‘duly cautioned in the manner directed by the Act of Co[struck through] Parliament in such cases’ before he gave his defence, indicating there was much discussion of the Jervis Acts at the time of their application.21 The Acts had been ‘Frequently adverted to’ in the press of the 1850s.22 As the Sydney Morning Herald explained in 1853 about the Acts, ‘this statute, though in the form of a code does not abrogate all the pre-existing duties of the magistrates, but leaves them untouched except where they are interfered with or altered by express enactment’. The major concern in 1853 was for the right of defendants to bring witnesses for the defence before the Magistrates.23
Depositions show how the law was comprehended in local areas, how policing was undertaken and how ordinary people understood what law was. The letters between magistrates and the Attorneys General illustrate the power relationship between two kinds of representatives of law. As such this paper is a move away from the examination of criminal cases and judgements to an examination of the detail of the creation of documents. What is able to be deciphered in depositions transferred to the Circuit Court is the substance of power with all its mediations and collusions. These sets of depositions represented the body or bodies of persons who made their own way to the Circuit Court, held at Goulburn, Bathurst, Brisbane, or Maitland or who were taken there by constables if they had not been granted bail.
There was communication and communication breakdown between benches and the Attorneys General and the Crown Solicitor. There was supplication, imperiousness and bitterness in those relationships. There was emotion around law. Each bench, like the sides of an octagonal puzzle show something different about the way the law operated.
The area of the Magistrate’s control
Though a warrant from a magistrate had power in any part of the colony, magistrates were allocated specific districts over which they had oversight.24 The central west of New South Wales ‘comprises mountainous areas in the east through undulating tablelands to extensive plains in the west’.25 Molong is located on those undulating tablelands in the Macquarie Range of low hills in Wiradjuri Aboriginal country and Wiradjuri have their own histories of the region.26 The town of Molong was established in 1835.The population of Molong was 1,446 in 1856 growing to 1,871 in 1861.27 The Empire in 1859 gave the following description:
Molong is situated on the main Western road [sic] of the colony, is distant from Bathurst about 80 miles and is surrounded by a large increasing population, having Orange distant about 22 miles on the south east, Stoney Creek, Iron Barks, Mookerwara, all within 30 miles on the eastern side, Wellington 40 miles on the northern side and the large pastoral district of the Bogan and Lachlan on the west.28
The magistrates at Molong, Robert Barton, J.H Hood, Charles Hood, Benjamin Darby, Henry Kater, Jonathon Maugham, Alexander Hood, John Smith, John Douglas, William Palms and Jonathon Wood were all squatters, that is landholders of significant acreages who had obtained recognition as landholders after 1837.29 In 1857 a police magistrate appeared, Henry Whitty. All through the period it was Robert Barton who wrote to the Attorneys General on behalf of the magistrates and was present in the majority of cases. Like most squatters he obtained other properties besides Boree, reaching as far as the Barkly tablelands north of Cloncurry in Queensland. Barton was considered an authority on pastoral matters.30 He was then perhaps interested in scientific thinking and this may have shaped how he saw the law.
Twenty-three sets of depositions survive for the Molong Bench for 1850 -1860. Cases were initiated by constables, landowners, rural labourers and smallholders in equal proportion in contrast, for example, to North Western New South Wales where most cases were begun by police.31 They show considerable effort by the clerk of petty sessions and magistrates to produce what they understood to be legal documents.
In Australia Indigenous knowledge, of which Indigenous law forms a part, is highly restricted by Aboriginal people and Australia is unlike other colonies where much is openly discussed. Aboriginal law underlies past, present, and future, as Virginia Marshall has explained. It is a system of law and knowledge that is not open to all but is attained through years of Aboriginal only intellectual and spiritual immersion.32 Press references to large gatherings of Aboriginal people in this region appear rarely but they do give an indication of the existence of an Aboriginal polity alongside a non -Aboriginal one. In 1853 Peter, an Aboriginal man accused of murder was arrested ‘at a gathering of 300 to 400 aboriginals on the Bogan’.33 In 1850 the Bathurst Free Press described:
a party of the Goulburn blacks who have lately been sneaking hereabouts commenced a murderous onslaught upon the Boree blacks on the 27th ult. near Boree Nyrang the residence of R.J Barton Esq. and killed three of them.34
Though Barton was a magistrate there was no additional information as to pursuit or retribution by whites. The political landscape of different Aboriginal groups was here shown to exist alongside the occupation of their country – printed in the newspaper such an account widens understanding of how colonisation occurred. It also was the society comprehended by the newspaper reader – there were two systems of governance existing side by side.
Newspapers stress Aboriginal involvement in industries including mining, shepherding and pastoral work. In 1851 a correspondent to the Sydney Morning Herald reported:
Nearly all the Cowra, Carcoar and Molong blacks are camped at the [Ophir] diggings together with their gins and picaninnies, and I believe these sable gentlemen make a good thing of it by cutting bark, bringing firewood and water and looking after stray horses.35
The high standard of living enjoyed by Aboriginal people at the mines was also commented on by this writer and their further services in skinning wallaby for themselves and others. Such employment and Aboriginal mining has been noted by Fred Cahir in his work on the Victorian goldfields.36 Aboriginal people were also miners on NSW fields even though the Commissioner of Crown Lands decided in 1851 they were not to mine without a licence. Gold was referred to as ‘budgeree’.37 Peter Read has written of the history of the Wiradjuri and has discussed the resource base the missions at Wellington and later, Nanima, created for Aboriginal people from 1830 to 1850. He deals with the failure of the missions due to the removal of children and the Wiradjuri exit from both settlements in the late 1840s to 1850.38 He does not discuss the goldfields or pastoral work in the period from 1850-1859. Missionaries concentrated on literacy and produced numbers of readers and writers.39 A list of donors to the Patriotic Fund in 1855 gives 17 people from ‘the Wellington Aboriginal mission’ collected by the Reverend William Watson. These ranged from two shillings to a pound.40 The Patriotic Fund was for the war widows of the Crimea and we cannot tell the circumstances by which this money was collected. What we can tell is that both men and women had substantial amounts of money to hand and so were working to obtain such funds. Their listing in the newspaper alongside nearly two hundred others gives them a status of equality in the press.
Unlike the work of legal historians this paper will not proceed by discussion of the facts of individual cases, the nature of the charges or the significance of points raised. Rather, it is concerned with pen, paper and the work of constructing a deposition, later reading of depositions and questions raised by the Attorneys General. Breaking up depositions in this way allows analysis of patterns of communication between legal officials, modes of policing and community ways of seeing law.
The legal requirements for the constructing of depositions were set out in Blackstone, Burn’s Justice and Plunkett. A deposition had to be taken on oath in a judicial proceeding with the prisoner present. Magistrates had to be ‘extremely careful in preparing depositions and should make a full statement of all the witnesses say upon the matter in question’. Depositions were not to be varied without the magistrate’s signature, indicating that the change came from the witness him or herself.41 Burn’s Justice of the Peace set down the requirements for magistrates and clerks in recording depositions. They should be in the first person, magistrates had to sign the statement of each witness, the depositions must be in the ‘very words or near as possible words’ of the witness.42 These practices were derived from earlier Acts and the common law and all of these texts give information on cases, Plunkett referring to New South Wales.43
Molong depositions do not bear evidence of being rewritten by a copying clerk, as in Grafton, or substantially altered by corrections, as at Yass.44 This can be understood by close perusal of the presentation of the documents Molong magistrates produced. Words that were accidentally repeated or ungrammatical are crossed out in the line of writing. In R v McGuiness 1850, the name ‘McGee’ was written twice and one name was crossed out, ‘brand’ was crossed out and replaced by ‘horse’.45 The clerk was uncertain whether he should use the alias or name of the defendant and ‘brand’ had been accidentally written instead of ‘horse’. In R v Henry Peisley, the constable’s claim that he ‘proceeded to his residence’ was completely crossed out and the reader is immediately in the public house where the forgery took place.46 This does not contradict other evidence and its crossing out is unimportant. The clerk also had an eye for precision. In R vs Billy Palmer 1854, the case refers to a nulla nulla47 ‘now produced’. In the surgeon Patrick Charlton’s evidence ‘the nulla nulla now produced is the one’ is crossed out to be replaced with ‘the nulla nulla would make such a wound as the one I saw’.48 In R vs William Powell 1855, Oliver Beadle was explaining exactly where his son took the sheep and proceeded to explain further with the word ‘usually’. This was crossed out and replaced with ‘half an hour after he came’, meaning the clerk took down only evidence related to the offence.49 These corrections were done while the deposition was being taken. Additional information appears rarely in Molong depositions and only to establish meaning. In R vs Kearn Cornelius 1858, the word, ‘I went there’ was replaced with ‘I went to Burrawong’.50 Such marking indicates that depositions taken at Molong conformed to the proper legal requirements, they were original documents.51 This is important to note because other districts present no such diligence. At Wellingrove, for example, copies of depositions were sent to the Attorney General. At Yass the information provided by deponents was crossed out to be replaced with unsigned contradictory detail. At Carcoar defendants were not present when the original depositions were made and the depositions were read out to them when they appeared.52 Molong represents what all depositions should have looked like – working documents, they represent how the law should have worked. Molong depositions also show closely what was said in court. There was great detail provided, indicating that the Bench had reacted at some point to criticism of its methods and was more precise at to the time and date of the offence, or the exact movements and words of constables.
Diligent Magistrates and the Attorneys General.
From 1832 John Huburt Plunkett was the Attorney General of New South Wales. In 1856 the Attorney General became an elected position and a rapid succession of different officers followed. The duties of the Attorney General were onerous from 1850 – 1860. He was chief law advisor of the Crown, a member of the Executive, public prosecutor and ‘he is himself, all in one person, the Grand Jury’.53 This meant that in New South Wales the Attorney General prosecuted in the Supreme Court and also decided upon the validity of cases sent to him by the magistrate benches. Though Plunkett was quite fulsome in his pencil marking of depositions, later elected Attorneys General did not give depositions their full attention. Consequently, numbers of cases came before the courts only for the Attorney General to decide in court there was no case to be answered.54 Depositions were sent to the Attorneys General and it ‘was customary’ for a letter for the Attorney General to be sent with them.55 He responded to letters through the Criminal Crown Solicitor who marked cases in order to draw up an indictment and sometimes made his own comments on the deposition. The ways in which the magistrates addressed the Attorney General in such letters varied across New South Wales. The Wellingrove magistrates let the Clerk of the Court relay their concerns and other North Western Benches gave the Attorney General directions, the Shoalhaven benches on the South Coast wrote to him as if there was a mutual problem to solve and the North Coast Benches pleaded ignorance.56 The Attorneys General responded to benches in different ways and these differing responses make the process mannered. For example, though being tersely addressed by the magistrates of the North West and presented by them with incomplete and faulty depositions, Attorneys General rarely criticised these wealthy men.57
The tone the Molong Bench used in their letters to the Attorneys General was one of supplication. It asked for information rather than giving advice. In 1850 in R v William McDonald 1850, they wrote:
We have sent to the Dubbo Bench to cause Mr Kinghorne to appear before them and be bound over to appear at the QS at Bathurst on 21 Feb but hearing that it will not reach him in time, we wish to let you know, as if you think it necessary to put off the case until the Quarter Sessions we will in the meantime secure Mr Kinghorne’s statement of the necessary facts.58
In R v Richard McGrath 1851, they wrote they were conducting inquiries into the prisoner’s name ‘but fearing these inquiries would not be developed by the time of the sitting of the Quarter Sessions was our reason (with your approval) to commit him to the Circuit Court’.59 The blurring of Quarter Sessions and Circuit Court cases is apparent in other benches. There is no comment on these two requests for the moving of cases between jurisdictions but in 1850 in R v Peisley, the Attorney General wrote in pencil on the cover – ‘inform the bench that the Quarter Sessions have no jurisdiction to try cases of forgery’.60 The Bench seems to have viewed the courts as interchangeable. In 1858 the clerk of the Quarter Sessions was asked to forward a set of depositions for a case of stabbing to the Attorney General. The Criminal Crown Solicitor, Dillon, noted in pencil that the date for the recognizances was the date of the Quarter Sessions.61 These mistakes indicate the Bench was not perfect in managing depositions, but their letters indicate they asked for advice.
Zealousness and ‘Improving’ cases.
Molong magistrates were zealous. They wondered ‘how to proceed against persons who having taken out warrants and offered rewards for the apprehension of horse stealers refuse to proceed against them when apprehended?’ The Attorney General, Plunkett, wrote in pencil on the case ‘I can only recommend that a summons be issued for the parties to give evidence and then they must come forward as witnesses.’62
The Bench’s concern for accuracy also resulted in them making creative decisions of their own. In 1850, for example, they wrote ‘many cases in which McGuiness has been concerned have been brought before us and we have selected two of the clearest cases to bring him to trial’.63 All serious cases of felony should have been sent to the Attorney General and their selections were an intervention that should not have been made.64 In 1850 the magistrates had been reprimanded for not forwarding a forged document with the depositions they had sent. They wrote in an initial letter ‘the cheque alluded to in the Peisley case will be produced by the chief constable in whose possession it remains’.65 Three weeks after the first letter they wrote again, ‘we have the honour to enclose the required document and will attend to your instructions in future cases of the like nature’.66 They had not realised crucial evidence was not to be given to a Chief Constable for safe keeping. In 1857 they were asked to forward recognizances they had not included in a case.67 In 1858 they wrote concerning another omission:
In reply to your letter of the 30th ult. Stating that an explanatory letter ought to be sent with depositions and requesting the return of the depositions in the case of Donovan vs Cummings (cattle stealing) required as collateral evidence in the case named in the margin [R vs Donovan perjury] we do ourselves the honour to enclose the depositions in question.68
Despite such mistakes the Molong magistrates worked diligently to put the Attorney General ‘in possession of the facts’.69 These they included in letters enclosed in depositions. John McGuiness was ‘a most determined horse stealer’.70 In the case of an Aboriginal man tried for rape, they wrote:
We beg further to inform you that two women, one at Montefines, Wellington, and one at the copper mine, Molong were about the same time similarly assaulted by an Aboriginal native, on both these occasions ‘Peter’ was encamped with Agland and the dray was at the places the assaults happened at…in our minds he was the perpetrator tho’ not justified. Peter for many years lived with small settlers and speaks English well and before he went to live with the Agland’s was sent away from the service of a farmer living near Summer Hill, for putting the females of the family in bodily fear, considering it our duty to put you in possession of these facts.71
Further letters reveal not only the urge to include more information about the accused but to embellish the case. Magistrate Robert Barton wrote to the Attorney General in 1853 that John Robinson came to see him and asked his advice about a horse he’d bought from Mrs Phillips which had belonged to ‘old Mr Constable’. The horse was branded MC. Robinson then sold the horse to Mr Matthews and after discovered it was branded WL on the near shoulder ‘which he had not seen at the time’. Barton asked Robinson if he had a receipt from Mrs Phillips, he said no, had he shown the horse to Mrs Phillips before he took it away, he had not:
I then told him I suspected he had made away with somebody’s horse who had got wind of it, and that I should hear something further about it presently, this I am ready to swear in court when called upon, and also told Robinson in open court that this was one of my reasons for committing him.72
It was ‘a very barefaced affair nearly every Body [sic] examined being more or less culpable, particularly Phillips and Johnson…I also do not believe the sale of the JS horse to Robinson ever took place – it having been an afterthought when they conceived too many people were talking about Clancy’s horse being made away with’.73 Committing magistrate Barton was prepared to be a witness but he was not deposed in court before another magistrate, nor were recognizances given – he imagined he could arrive at the circuit court and give evidence there. This is contrary to the place and purpose of a deposition expressed in Plunkett, all evidence was to be sworn and depositions were read at trial to ensure there were no divergences in information and the case not ‘concocted’ or the tale ‘improved’.74 ‘Improving’ on the depositions in a letter was exactly what the Molong magistrates were doing.
In 1854 Barton claimed a defendant called upon him the evening before the examination before the bench. He ‘admitted that he had slaughtered the heifer…and admitted he had done wrong by doing so’. The defendant Keenan ‘asked me to get him out of it and use my endeavours to prevent him having to appear at the Police Office the following day’. 75 Barton did remand the case for a week so Keenan could produce a cow relevant to the case but instead Keenan went to Bathurst and brought back a lawyer. In court his attorney argued that there was no evidence that the slaughtered animal belonged to the person who instituted the case. Barton then in court stated that Keenan had told him he had done it and what he said was immediately corroborated by the chief constable.76 Further Barton decided that the depositions had not been faithfully taken down ‘I shall make it my duty to be present at the Assizes when I can explain the case more fully’. A set of statements accompanying the letter contained no signatures before a magistrate, no date and were headed ‘what Robert Barton knows about Keenan’s affair’. These were received by the Attorney General on 31 August 1854. The witnesses for the defence statements made at the end of the hearing in May that year also were not dated. Again, this was not a sworn statement, and it was a considerable ‘improvement’ on the deposition.
These were immense informalities but the letters are not pencil marked. The prisoner was remanded and bailed in September 1854. Even in Grafton, that most lax of benches, magistrates knew they had to give depositions if they wished to bring servants to court.77 It was the labour of producing depositions and the sheer involvement of Barton in wishing to present ‘all the facts’ that produced how the court worked at Molong. The wish also, evident in McGuiness, to bring reluctant prosecutors into court and the concern as to exactly how to do this is a sign of a diligent magistracy, working with their own version of the law.
That the magistrates had a propensity to add information or statements of witnesses to depositions is apparent in other cases besides Keenan’s. Depositions were legally meant to be taken in the presence of the prisoner and if he or she was not present such depositions should have been taken again.78 The magistrates added a letter at the end of Pickup without it being sworn to.79 They added a deposition to Pienell and Peters ‘this witness James Lee of Larry’s Lake can give the following evidence if called upon in Bathurst’.80 At the end of Robinson there are two entries by Magistrates that are not depositions and not signed. One was by a man named Martel that he had been asked to come to the courthouse by John Robinson to give evidence on Robinson’s behalf that ‘he saw Robinson take old Mick away’. Robinson stood accused of taking a far better horse after buying ‘old Mick’. Martel told Robinson that ‘if he summoned him he would speak the truth, he did not see him take old Mick away’. This account was neither signed nor dated. James Rue ‘can prove’ the identity of the horse taken and great detail was provided, but again, no signatures or dates were given.81 In the case of Peter, they sent an additional deposition a month after the initial hearing, not indicating that the accused was present during the hearing.82The magistrates clearly believed that these additional witnesses could simply be called up in Bathurst.
That the Attorneys General castigated the Molong magistrates for their mistakes is apparent in the letters sent by the magistrates to them. Like all other depositions of the period the most intensive marking in pencil came from Attorney General John Huburt Plunkett, but these for Molong were few. The most scathing criticism of the Molong Bench came from the Criminal Crown Solicitor. William Moore Dillon wrote in pencil on the depositions supplied by magistrates Barton and Whitty which claimed that Donovan had committed perjury ‘by swearing that Augustus Cummins had stolen a bullock’:
But he has not sworn any such thing as will be seen by the evidence – on the contrary he describes all he heard and prays a warrant which the magistrate very improperly granted on such a statement and as it turns out McCrae does not identify the bullock in question as one he received from Cummings [sic]. He noticed the bullock first when Donovan pointed him out.83
I have gone through the whole of these proceedings and cannot discover any materials from which to draw an information for ‘perjury’. Both cases (cattle stealing and perjury) appear to have originated out of the reckless manner in which Mr Whitty [Police magistrate] issued the warrants in both cases for the apprehension of the parties. Cummings may have had good grounds of action against Donovan for commencing Criminal proceedings at all, and against the magistrate for issuing a ‘warrant’ on such an insufficient information as Donovan swore in the first instance, but in fact none of all the persons examined differ materially as to what took place after the bullock was first noticed.84
The Attorney General, James Martin, had thought there was ‘ample evidence’ for Donovan to be charged and overruled Dillon.85 The jury at Bathurst agreed, though the barrister Holroyd’s argument was not given in the press report, and Donovan was found guilty.86 This disagreement between Dillon and James Martin seems unresolved. Dillon’s criticism, however, was of the enthusiasm of the Police Magistrate who had decided that perjury had occurred in the petty sessions and Whitty’s actions were in keeping with the enthusiasm apparent in other cases. Robert Nichol’s assumption in his drafting of the 1853 amendment to the Justices Act was that Police Magistrates, as paid individuals, would understand more of the requirements of law and thus they were enabled to hear cases alone, without other magistrates.87 William Moore Dillon argued otherwise in terms of Henry Whitty who was ‘reckless’ and overenthusiastic in his granting of warrants in this case. Whitty had been Commissioner for Crown Lands on the Maranoa from 185188 and he was not legally trained. His actions in Donovan were in keeping with the culture of the Bench deduced from all of the cases sent to the Circuit Court.
The first aspect of the culture of the court was this zealousness and this wish to embellish cases by Molong magistrates. This came partly from their ignorance of the requirements of the deposition as a document and partly from the enthusiasm demonstrated by Robert Barton. Also, their informalities in adding evidence and presuming they could simply appear at the Circuit Court were not noted by the Attorneys General. The mannered nature of the interaction is therefore stressed. The Attorneys General did not in all instances enforce the requirements of law concerning depositions. Their methods distinguished between benches.
Constables and diligence
Detail provided in cases gives access to the structure and style of policing. Constable Longbottom of the Mounted Police noticed ‘some persons’ with horses on the King’s Plains and rode up to ascertain their identity.89 He recognized McGuiness. Constable Chidsworth who was with him could identify the horse. No-one questioned the Mounted Police being able to stop persons they met on the road and this is related to the convict system with its passes and identifications. This mode of policing encompassed all travelling persons. Constable Davis met James Sutherland outside Molong and ‘asked him to account for himself, he varied in his statements to such a degree I bought him to the police office’. Sutherland was then searched.90 What is significant though, is that the contents of Sutherland’s bundle was described in court ‘blankets and other articles of paper’.91 Similarly, it was not enough to describe the suspect order paid by Henry Peisley to Samuel Phillips. Peisley was searched in the public house by Chief Constable Samuel Downs and ‘a bottle of muriatic acid, and the feather tip of quills’ were found. Downs experimented and ‘I find that the acid will take writing out of the paper’ hence accounting for the alteration of amounts of money on the order.92 In both cases constables searched persons as a matter of course and they were not resisted and everything they found was mentioned in the deposition. In 1854 Peter Sterrick was asked ‘to allow himself to be searched’. Sterrick refused and John Davis ‘threw him down and searched him’.93 All that was in his pockets was recounted.
Constables exhibited considerable diligence in pursuit of suspects. In 1854 Chief constable John Davis was passing the premises of James Peters and went in to ask for the hide of a beast he saw hanging there. He found the brands were not as Peters said they were after he washed and cleaned the hide himself.94 In 1857 John Davis and another constable tracked ‘with a blackfellow’ a stolen horse ‘with a distinctive shoe’. He found a man sleeping near the horse and asked him what he was doing there, ‘he said – because I am a bloody fool’.95 The detail provided in the depositions gives us such a sentence and constables were giving as much information as possible. Constables elsewhere would simply say they tracked a stolen horse, but in Molong exactly who tracked and what they tracked was clearly stated. Constables were as transparent as they could be excepting in the crucial instance of the absence of recordings of warnings at the point of arrest. The Jervis Acts 1848 s.18 imported into the colony required that persons being arrested were to be warned that anything they said could be used in evidence and that they should not incriminate themselves.96 There was only one instance of such a warning being given at Molong and that was in the case of Thomas Chew, accused of grievously assaulting his wife in 1857. John Davis claimed ‘before stripping the prisoner I asked him have you anything to tell me as I was going to Gamboola respecting the charge you are in for but I said don’t say anything as it might be given in evidence against you’.97 Given the propensity of constables to record any statements they made and to give as much detail as possible it may be concluded that warnings were not given in all of the other cases. Like magistrates they were diligent in the pursuit of their duty, but this duty was skewed slightly away from the requirements of the law.
Constables were also relied upon by the local population. They were sent for by publicans and storekeepers on first sight of a suspicious note.98 They were also called upon by employers99 and by servants and persons of equal status to the accused.100 Warrants and the methods of setting them out, determining evidence and issuing them were set out in Plunkett:
When a complaint is made to a Justice of the Peace that an indictable offence has been committed by any person within the district to which his commission extends his duty is to issue a summons or warrant to bring the party before him, in order that he may examine and enquire into the matter of the charge and commit, or bail, or discharge the party.101
Constables themselves obtained warrants from Magistrates and warrants were obtained in five cases by persons who claimed cattle or horses had been stolen from them. These were formally given, as required in Plunkett, and included in depositions.102 James Budge Clymo obtained a warrant against his former servant,103 Patrick Clancy had ‘just reasons’ that James Robinson ‘late of Molong in the said colony did on or about the morning of the 7 May steal a bay gelding the same being my property and therefore pray that justice may be done’.104 Joseph Irvine claimed James Keenan had stolen his heifer and ‘pray that he be made to answer for the same according to law’.105 James Donovan came to court to say ‘I charge Cummins with stealing my bullock’. Warrants were also obtained by constables in pursuit of defendants. Chief constable John Davis obtained a warrant to apprehend Richard McGrath who had escaped from custody in 1851; he searched for McGrath for ’30 hours’. In 1855 he obtained a warrant against Robert Pienell and James Peters after he had inspected the hides at Peter’s residence.106
There were no inquests at Molong meaning that the opportunity for members of the public to control an investigation through a coroner was not available. Nor was an inquest even mentioned at all by the magistrates. There were two deaths during the period. Billy Palmer in 1854 and John Hushan in 1855 did not include a surgeon to establish the cause of death. In 1858 Andrew Ross, a ‘legally qualified medical practitioner’ gave evidence in the assault case Dan and he appeared also in the assault case against Thomas Chew who cut his wife’s throat. He must have been a newcomer to the area. It seems unusual that Molong did not have the services of a person who acted as a surgeon, even if not qualified – they do appear in inquests in other areas. The absence of this information means that the work of inquiry was not properly done at Molong. The magistrates made no comment at all on this point and it seems were not requested for information about such an absence by the Attorney General. The cases were tried despite there being no proper evidence of cause of death.
Constable diligence and the willingness of the public to utilise the services of constables indicates a high level of popular interest in the law at Molong. There was a tight net of control on the roads and in police searches of property. The absence of concern for warnings implies that the law was not entirely understood but the use of warrants indicates adherence to the requirements of law. In cases involving death, the close procedure of the Coroner’s jury did not appear at Molong, nor did the key witness in any case of death anywhere in the colony – the surgeon appear at all. Diligence had its blind spots.
The Molong Public and Depositions
Molong includes a kind of person who appears rarely before other benches and this was the ‘stranger’. Both Aboriginal people appearing as defendants were described as strangers to the people they attacked. William Powell was a stranger to the boy who he assaulted and horse thieves were unknown to those they stole from.107 The work of constables became important in these cases. The use of the word ‘stranger’ indicates a close community that identified outsiders, Aboriginal or white. This community could use law as a weapon.
Cases brought by persons of equal status were long and complex and show the use of the criminal court alongside other courts to obtain redress, ruin a rival or institute proceedings they later regretted. John Robinson went to the constable for help in placing an advertisement in the Bathurst Free Press saying he had accidentally sold a horse not belonging to him. Patrick Clancy obtained a warrant on the strength of the advertisement and refused the offer for £8 for the horse. He had been searching for six weeks for the horse and had told a lot of people including the constable who had helped with the advertisement. The horse was worth £30, he claimed.108 Diverse witnesses appeared against Robinson, all of whom gave detailed evidence as to horses they had sold and thought they saw on the street in possession of someone else. If evidence was seen to contradict a former witness the person was recalled and questions asked and in this way the depositions were streamlined, all being tailored to the point of the case. This was the work of magistrates who were thorough, but it was also the willingness of witnesses to include detail themselves. Mrs Phillips, we find, told her husband she could get £3 for a horse he bought and so he told her to sell it. She did sell it to John Robinson and later we find that John Robinson was actually living with the Phillips at the time and had ‘lived about Molong’ with different people ‘since he was a little boy’. But this was not the horse that was stolen – that was an entirely different horse which Robinson said he mistook for the one Mrs Phillips had sold him.109 We trace the stolen horse through a selection of witnesses who would not have seen the inside of the court in another jurisdiction. All of them were there because Clancy would not be settled with but wanted to pursue Robinson through the criminal court. In James Keenan’s case the defendant also had tried to make up the cost of a heifer he had killed, but James Irvine did not take the pound he was offered and went to the magistrate Mr Barton to tell him of the offer. It seems he was asking if he could accept the offer when Barton said no, the case ‘was out of my hands’.110 James Donovan, when he brought a case against Augustus Cummins explained:
I was staying at Mrs Ramsay’s and Mr Smith’s of Gunningbland. I was a couple of days at Mr Ramsay’s – I came here as a witness in a case against Cummins and others – the present defendant.111
Earlier he had stated ‘I was charged with cattle stealing and honourably acquitted. Mr Cummins has purchased a number of my cattle and my station’.112 Donovan was charged with perjury in this case, though the Criminal Crown Solicitor could not see why he should have been and disagreed with the Attorney General.113 In R v Keenan the magistrates explained that while Keenan was going to obtain a solicitor under the guise of returning to court with a cow, James Irvine the prosecutor:
Had taken out a summons for the value of the heifer to be heard before the small debts court but the case being called on, it was remanded until the next sitting which would take place that day three months and after the circuit court decided the case.114
Irvine had acted in two courts against Keenan, perhaps before he thought better of them, but the cases once instigated would not be stopped. These cases resemble those heard across the colony between persons of equal status where the law was ‘played’ in long term disputes. The courts at Molong, however, circumvent easy resolutions and agreements that remain invisible in cases heard before other benches.
The inclusion of detail and the dovetailing of evidence of witnesses distinguishes Molong depositions. At Grafton and the Shoalhaven contradictory statements were simply put side by side into the depositions. The North Western Benches allowed witnesses to contradict themselves without comment.115 It seems that Molong deponents were guided through a case. The Attorney General’s critique was thus warded off by the careful attention to detail. We gain information on the behaviour of cows in detail, the nature of butchering, the way in which Aboriginal people were treated when they called at the door of a house, the behaviour of shepherds, the trading positions held by women – all in service of the case. Was that the nulla nulla that killed Jane Bradley, or was it another just like it? This had to be made clear in the deposition, was the strawberry cow exactly the same strawberry cow that the heifer bothered or was it another? Several witnesses were needed to answer this question. Thus, the work of the law was undertaken by the Molong magistrates under Barton, a Justice of the Peace, not a Police Magistrate and hearings were closely and accurately documented. Excesses came from diligence rather than carelessness or disinterest.
While there was enthusiasm for law and a willingness to go into great detail to secure a conviction there was also a propensity to play the law present at Molong. Attempts at doing this were made plain before the bench and negotiations to resolve disputes outside the law were circumvented. The detail and the openness to an idea of law, that may have been quite far from the actual requirements of law is something the Molong public, the constables and the magistrates had in common. Such perspectives incorporated Aboriginal people and this is apparent in cases involving Aboriginal defendants. Molong was distinct in this incorporation as in other areas no Aboriginal people appeared before the courts at all, or they appeared because of their close relations with an employer.116
Molong Aboriginal subjects
There were two cases against Aboriginal men for attacks on white women at Molong in the 1850s. Peter ‘spoke very good English and was dressed in a check shirt, cabbage tree hat, broken, and trousers’.117 Billy Palmer also could speak ‘pretty good English’ and carried a nulla nulla.118 Both visited huts asking for directions according to the depositions and both were unknown to the persons they assaulted and the white people around them, fitting the idea of the stranger. They were both given food, Peter was given ‘tea, bread and tobacco’ and Billy Palmer ‘grog and bread’. Billy Palmer asked for the road to Wandowendong Peter asked Diana Elms if ‘she had seen a blackfellow from Mr Barton’s named Jacky who had lost a horse at Blackman’s swamp’.
Peter was referred to by Edward Atkinson who worked for James Keenan as ‘a strange blackfellow’ who ‘was seen about here…the blackfellow was a stranger, not one of the Boree tribe’. Billy Palmer was the only Aboriginal person in the neighbourhood of Galgullardo station according to William Murray superintendent of Archibald Campbell’s station Wandla Wandla. John Bradley, a shepherd of that station gave evidence that a:
blackfellow had come to his hut, the prisoner at the bar resembles the blackfellow but I cannot swear to him – he told me he was going to Mr Sherry’s – that the blackfellows at Balderadgery were going to kill him and that he would go to the Murray.119
The only witness to the murder of Jane Bradley by Billy Palmer was a Chinese man, On Qweu, who did not speak English at all and had mimed to constable Patrick Charlton of Molong police what he had seen through a crack in the door. He had tied up Billy Palmer very tightly and had put clay on the wound on Jane Bradley’s head. There was no interpreter at the court and so his deposition did not appear. William Murray, the Superintendent of Campbell’s station, bathed Jane Bradley’s head in warm water, she was alive but unconscious and Murray told On Qweu to untie Billy Palmer and let him go. He thought Jane Bradley had been drinking and her ‘insensible state was partly to be attributed to this cause’.
It was the arrest of Billy Palmer that creates difficulty with the veracity of the descriptions of On Qweu’s account. There are three accounts of the arrest. The first by constable Patrick Charlton stated that William Smith, Chief Constable, gave him directions to ‘follow the man’:
I had no description of him but when I got to Mr Palmer’s station at Cudgerie I heard there was a wounded black with his arm in a sling and a friend of mine on the station induced him to come up to the hut to have supper and to look for lost sheep and on his coming in I apprehended him, it was Sunday night I apprehended him from suspicion from the marks of the cords on his wrists and on passing Baldan-dgery Mr William Murray identified the black as the one that he let loose in the hut.120
Billy Palmer confessed to him on the road to Molong, as was the wont of many defendants at Molong. The second account involves the Bathurst Free Press and Mining Journal:
A Chinaman in Mr Campbell’s service saw the whole transaction through the chinks of the door, seized a paling and rushed upon the ravisher whom he felled to the ground, and subsequently tied in such a manner, wrists, ancles [sic] and neck to a cross beam, there, but for the timely arrival of Mr Murray he would have been hanged. By some means or other he managed to escape but was taken by a Molong policeman, who identified him by the incision made by the cord in his wrists, from a gathering of 300-400 aboriginals on the Bogan…the perseverance and bravery of the policeman whose name has not transpired in capturing the sable ruffian under such circumstances are worthy of recognition.121
John Bayliss, however, placed an advertisement in Bathurst Free Press and Mining Journal:
I understand that the Constable at Molong has stated that he apprehended Billy Palmer the aboriginal, who is sentenced to death for the murder of June Bradley, in the night time. I beg through your paper to state such is not the fact. I myself apprehended the blackfellow at his camp and delivered him to the Constable at the hut about 10 o’clock of the night in the presence of three men. The Constable never visited the camp nor saw the blacks.122
John Bayliss was, it may be assumed, Patrick Charlton’s ‘friend’ in his account. The newspaper account of how Palmer was tied is not corroborated in the Murray account. Murray untied Billy Palmer because he thought the woman was drunk and Billy Palmer was innocent. Constable Charlton arrested a man with a sling and marks of cords on his wrists with a nulla nulla. He was identified in court by William Murray as being the man he untied. The evidence of On Qweu was not taken by the magistrates even though the case was forwarded to the Attorney General. There remains some doubt over conflicting accounts. No-one could identify the nulla nulla as the exact weapon used.123
Peter was accused of raping Deanna Elms who resided on James Keenan’s station. The chief constable at Molong Joseph Samuel Evans ‘followed’ Peter, meaning he was presumably tracked and apprehended him at Summer Hill Creek and on the Monday following he was identified by Deanna Elms.124 Deanna Elms was also wounded on the back of the head. Peter’s employer, a bullock drover, called at the hut and on Deanna Elm’s request reported the assault to Keenan, he met Peter at Keenan’s swamp and spoke to him about Mrs Elms but he denied it.125
The terms on which these two cases appeared in court were different to other areas where Aboriginal people lived closely with the persons who brought them to court and were well known, or they were brought at the instigation of Aboriginal people themselves as Mark Finnane and Heather Douglas have described in their study of inter se cases.126 These men were strangers and described as such. The untying of Billy Palmer suggests that there were indeed perceptions of Aboriginal innocence at Molong and there was such detail given over the nulla nulla and its possible use as a murder weapon two persons claiming it was ‘like’ the weapon they saw. This does not ensnare Aboriginal people in an immediate realm of suspicion and hostility, even if they were seen as strangers.
The Aboriginal subject at Molong emerged then from the same kind of close living that also brought Aboriginal people at Grafton and the Shoalhaven before the Benches127 but this was through them being ‘outside’ being ‘unknown’. They were brought through constable activity in either tricking them or following their traces, but these constables had been called upon for their assistance.
The three elements in Aboriginal cases – the stranger, the close detail required by magistrates and the pursuit by constables are apparent in all Molong cases and these three components of the culture bring people into the purview of law. Once people got into court they further expressed and showed their relationship to law.
Questions in Court
In keeping with the efficiency of the clerk at Molong, answers to the questions asked of witnesses by defendants were written out and sometimes the question was also rendered. The defence statements were also given. This means s 17 of the Jervis Acts imported to the colony was clearly followed in the court room at Molong and whether or not the defendant had questions was noted. Other benches do not record such questions and at Hartley a defence statement was made a day after the hearing of depositions and the magistrate was not present.128
These questions and answers give some idea of the way the law was understood by the ordinary population of the district of Molong. John McGuiness had the following exchange with the sheep overseer of John Woods station, Brudendon:
Question by Prisoner
When you met me did I not ask you if you had a chestnut colt on the run?
Answer, you did.
Question, Did I not ask you if Mr Woods was at home and if he was would he lend me one horse?
Answer, you might have said so.129
McGuiness was suggesting that he did not intend to steal the horse, or why would he have asked after it in this manner. This had no bearing on the fact of being found in possession of the horse by Corporal Thomas Longbottom of the Mounted Police on the Wellington Road, but McGuiness thought it did. William Johnson asked a similar question of a witness – asking why would he speak of a horse if he was about to steal it. 130 The idea of intent was also used by James Sutherland who asked a storekeeper ‘Did I not offer you another cheque before I gave you the five pounds order?’. The Storekeeper answered ‘yes you did offer me a one pound five order which I gave you back’.131 The forged order was among other orders and Sutherland if intending to pass a forged order would surely only have had one.
Defendants also tried to discredit evidence. John Robinson asked exactly where the horse he was accused of stealing had been taken from and how long ago one witness had sold the horse.132 William Powell asked his victim if he could look him in the face in court and say that all he said was true.133 This kind of questioning was closer to the manner of Attorneys in the colony. Only two cases suggest that there was a solicitor present and the first was Cornelius Kearns and Augustus Cummins. Donald McCrae, a grazier ‘to some extent’, was questioned ‘by the defence’. The questioning related to the circumstances at the cattle being identified as belonging to the accused by the key prosecution witness. The case was halted by the magistrates and a charge of perjury brought against the main prosecution witness.134 The second case was James Keenan’s where the magistrate Barton suggested that Keenan ‘brought back an attorney’ from Bathurst. This case had defence witnesses, one of whom was the clerk of Petty Sessions, Archimedes Byrne Luscombe testifying that the prosecutor had also gone to the Court of Requests, indicating that legal advice was taken or the Attorney was present, though questions were asked ‘by the prisoner’ in the case.135 The Bathurst Free Press reported the hearing and the presence of Mr McIntosh, Attorney who argued there was ‘no case to go to a jury’.136
James Keenan, the prisoner, sought comments on the public nature of his talking of slaughtering a cow. Nothing was ‘kept concealed’ the witness claimed and the questions about the slaughtering were asked ‘in public’. There was ‘a room full of people’ even though ‘I would not swear if they all heard’.137 Such public statements would suggest the defendant thought he was acting legally. Being ‘public’ implied innocence and such public speaking protected the defendant.
Thomas Chew, before he asked questions of witnesses in his case concerning the assault of his wife, ‘asked that all females be ordered from the court’. His questions of Michael Donnelly concerned Donnelly’s presence in his hut at night during the week before Chew assaulted his wife. He also asked if a man named Caulfield said of Chew ‘that’s the bugger as soon as we can see him off we are right’ or ‘the bugger is too quiet to live’. Nor had Donnelly heard anyone say of Chew’s wife ‘put her on the bed and shove the bugger outside’. 138 Though Thomas Chew was said to be mentally impaired these questions related exactly to intent as did the question relating to how drunk he was at the time of the offence.139
More complex was the question asked by John Ryan to a man who was sleeping in the same room as him and who claimed Ryan had stolen a cheque out of his trousers’ pocket. The answer was ‘You did not tell me that you brought tea and sugar with you’.140 This is related to the customs of giving and treating in the colony and seems more a reproach to the prosecutor than any defence.
Defendants relate peculiarly to evidence in their questioning, indicating that they may have had some knowledge of court room behaviour but not enough to seem as astute as defendants in places like Yass for example. If solicitors were regularly present at hearings they could be learned from and their methods mimicked but it seems they were rarely present at Molong.
After the end of 1850 prisoners generally were asked at Molong if they had anything to say in their defence. This was sometimes ‘nothing’ and this was duly noted.141 One mode of defence involved the property or part of the property being the possession of the accused and not stolen at all. This included a saddle and bridle, a heifer and coat straps.142 In Richard McGrath’s case he claimed ‘he knew nothing of the horse, good or bad’ but the saddle and bridle were his own and accused his employer, the innkeeper, James Budge Clymo, of having ‘perjured himself’.143 All of these cases imply that the evidence against the accused was false and that the case was concocted, something common where the accused and defendant were living closely or of equal status. There was the implication that the law was being played. This was proven in the 1858 Kearn Cornelius and Augustus Cummins case of bullock theft where the accuser James Donovan who ‘had not been on speaking terms for some time’ with the defendant Cummins was shown to have recognised that the ‘stolen’ bullock actually did belong to Cummins.144
In defences cheques, orders and money had been ‘found’ or given by someone else and women seem to be mentioned in this context. Mrs Bloomfield and Mrs Martel were responsible for giving forged orders to James Sutherland.145 In a case of horse theft the innocence of William Johnson was claimed because ‘I went on the road to look for work, feeling fatigued I went in the bush, laid down and did not wake till approached by the constables’.146 Dan or ‘Tan’ was employing a shear blade to cut his boot when attacked by a man he stabbed. It was accidental, the shear blade was in his hand when he tried to defend himself’.147 These cases stress the innocent nature of the defendant.
John Pickup sold a Bullock belonging to his employer because it was lame and was told to sell another four.148 A letter he wrote was included in the case. He wrote to his employer Mr Hawker that he ‘was lying in Molong lockup’ and that he had sold a lame bullock belonging to Hawker and some of the cattle he was droving belonging to Patrick McMahon. He gave a receipt for all of them.149 The information about the sale was underlined but not the point of the receipts. For Pickup, requesting that Hawker come to Molong as soon as possible, this letter would mean he was exonerated. Hawker, however, came to court to say he had never given permission to sell, the cattle were not his, he was running them for others.150 It is difficult to tell at what point the letter came to the attention of the magistrates, whether it was intercepted by the lockup keeper or given by Hawker. It was simply added to the case, as Molong magistrates, as we have seen, were wont to do.
Only one cases provided witnesses for the defendant, this was Keenan, 1854. James Keenan’s employees, one ‘engaged’ with Keenan, the other a ‘hired servant’, indicating the status difference. Neal Angus, the man who was engaged gave evidence that a heifer was sucking on Keenan’s cow. It was branded JI, and there was discussion over what to do with the heifer. ‘First they thought of branding her but decided on killing her’. Patrick McAvoy, the hired servant, claimed that the prosecutor James Irwin made an offer to take ‘a pound’ and another heifer to settle the case. Irwin was recalled and said that Patrick McAvoy offered the pound ‘to compromise the case’ and that Keenan offered him a cow and heifer as an equivalent for the one he had killed. Keenan’s defence statement was confusing – ‘the beast I killed was my own, the brand which was on it I did not know and I thought it better to kill it as I could not send word, not knowing the brand’.151 The clerk of Petty Sessions also gave evidence that Irvine took Keenan to the Court of Requests to recover the sum of 5/- in pounds sterling for the value of the beast slaughtered.152 Again, playing the courts was suggested.
The Right to Silence, deriving from Warickshall’s Case  according to Eugene Schofield Georgeson evolved slowly in the colony beginning from 1824 when Chief Justice Forbes refused to receive a confession he deemed involuntary in R v Stack and Hand.153 Confessions were to be voluntary and made on oath, according to Plunkett’s guide in 1847 and no inducement was to be offered or else the confession was involuntary.154 Some Molong defendants admit guilt to a witness or in notes added at the end of a case that they had in fact done what they were accused of. Such confessions should have been sworn documents, yet the Attorneys General place great weight on this kind of informal confession. John Pickup’s letter was underlined by the Attorney General, it could be used against him because he admitted to selling the cattle.155 John Robinson in inveigling Martel to give evidence on his behalf admitted that he did indeed take a horse that he knew did not belong to him.156 Billy Palmer told constable Patrick Charleton both that he had murdered June Bradley and that ‘they would hang him as the woman had tumbled down’.157 John McGuiness, alias McGee, confessed, on the road to the lockup, to the arresting Trooper Chidsworth of the Mounted Police that the horse he was found with did not belong to him.158 Such confessions strengthened the case against the defendant and their inclusions may be part of the diligence shown by magistrates. They also may be a result of the lack of awareness elsewhere evident among defendants at Molong. Their weight for the Attorneys General meant that, despite the 1853 Act and the common law set out in the texts, voluntary confession was not a settled matter in the colony.
While the clerk of Petty Sessions with his accuracy and clarity may give the reader confidence in the legality of deposition taking at Molong, the actions of magistrates bring it into question. Their diligence was in part their failing. The Attorneys General also, did not always follow the requirements of the law in their reviewing of depositions.
It was possible to work beyond the scope of the law in the name of law. The diligent magistrates and constables of Molong were aware of some requirements and they presented detail after detail in long running initial hearings. Such activity sometimes ensnared the local community in a manner in which they were unwilling, but it was ‘out of their hands’ and the case had to proceed to the circuit courts. Ordinary people did not seem adept in managing law despite making use of it. We know how versatile law is since E P Thompson’s discussion of ‘playing the law’ by agents in the eighteenth century.159 We also know from Hilary Golder and Russell Hogg that law produces cultures around itself.160 This versatility and productiveness extends into the processes by which law is interpreted by officials often without conscious awareness of how boundaries had been overstepped, like in the case of Molong bench in its zealous pursuit of accuracy. This was not because Molong magistrates were ignorant or arrogant in their attitudes, but because they were under the impression that this was the right way to behave.
The Attorneys General often ignored the inadequacies of this Bench. This ignoring, where other benches were castigated is a mannered process. The Attorneys General were approached in exactly the right way by the Molong Bench, they were asked for advice. What examination of depositions throughout the colony shows is that manners of one kind or other, obsequiousness, imperiousness or obsessiveness helped determine the fate of those accused of offences in New South Wales.
The figures and numbers of offences that come out of a statistical approach to offenders are complicated by these mannered processes by which law works. Molong shows also how the Aboriginal polity exists alongside non-Aboriginal law and how particular mechanisms, such as the idea of the ‘stranger’ resulted in Aboriginal people being accused of an offence. It is not a case of Aboriginal people being subjects of law but rather an example of law reaching into the Aboriginal polity in particular ways, contingent on these mannered relationships between officials.
The reviewer comments for this article provided invaluable advice. The author would also like to thank Mark Finnane who read this article in its very early stages and the legal historian Alecia Simmonds for her advice on the final draft.