Mark Tedeschi AM QC speaking on War Crimes and Genocide at the annual Myall Creek Memorial Gathering for those who died in the Myall Creek massacre of 1838.

Mark Tedeschi AM QC, Senior Crown Prosecutor in NSW and President of the Australian Association of Crown Prosecutors recently published a book, “Murder at Myall Creek”, explores the legal significance of the two trials that followed the massacre. Mark considers the trials as “being prototypes of modern-day war crimes trials. There was indeed a war being waged at the time – a war of extirpation and annihilation against the Aboriginal people on the periphery of colonial society.

 

Mark Tedeschi's full speech at Myall Creek: 11 June, 2017

Although we have come here today to recall the horrific murder of 28 men, women and children in the valley below us on 10th June 1838, this memorial has in fact come to represent the multitude of massacres that occurred all over Australia during a period of more than 120 years. The reason for that is because we know more today about the murders at Myall Creek than any of the hundreds of other massacres of indigenous people that occurred all around Australia. We know so much today about this one largely because of the investigation and the two trials of the perpetrators that were conducted in 1838.


The man who successfully prosecuted the two trials of those responsible for the massacre was the then Attorney General of New South Wales, John Hubert Plunkett. It was, in my view, the greatest challenge of his long career and one of his greatest achievements. Unusually for the times, there were two trials that arose from the massacre, and both provoked enormous controversy and hostility throughout the colony towards the prosecutor. The powerful forces of the landowning settlers were pitted against Plunkett, and caused him endless difficulties. Plunkett’s approach to these prosecutions was innovative and bold in equal measure. He faced massive difficulties in overcoming bigotry and vested interests and, in many respects, he had both hands tied behind his back. His biggest hurdle was that despite the fact that there had been an eyewitness to the massacre – the indigenous station hand Yintayintin (known as Davy) – the law at that time prevented him from giving evidence in court. Plunkett spent the next twenty years trying to remedy this deficiency in the law – without success.

New South Wales was, in fact, one of the last jurisdictions in Australia to allow Aboriginals to give evidence in court.


It is instructive to look closely at the long-term effects of the Myall Creek murder trials. The 1838 trials marked one of the few times in the history of Aboriginal displacement that Europeans were punished for the murder of Aboriginal Australians. Those trials stand as an early statement of principle that Australian courts had at least the capacity to operate without fear or favour and to treat all people, including those on the margins of white society, equally. That is not to say that the law always operated in this way, or even that it frequently did during the colonial period; but on the occasion of the Myall Creek murder trials it certainly did. Plunkett’s advocacy and tactics at the second trial succeeded in persuading a jury of twelve white free men and freed men to convict seven white defendants for the brutal slaying of an Aboriginal child, who represented the twenty-eight members of that infant’s tribe who had been murdered. That Plunkett was able to do this in the face of almost universal hostility to the prosecution was nothing short of miraculous. It would never happen again during the colonial period, or even after the federation of the Australian States in 1901.


Tribute should also be paid to others who did the right thing in 1838:

  • George Anderson, the convict hut keeper on Myall Creek Station who attempted to convince the perpetrators not to commit the atrocity, and who later bravely gave evidence against them;
  • Yintayintin (Davy), the Aboriginal station worker on Myall Creek Station who followed the perpetrators at a distance whilst hidden in the bush and personally witnessed the murders, so that he could report back to George Anderson;
  • William Hobbs, the Station Manager on Myall Creek Station who reported the atrocity in writing to the authorities, and who was repaid for his actions by being sacked by his employer, Henry Dangar;
  • Police Magistrate Captain Edward Denny Day, who conducted an exemplary investigation of the incident and managed to arrest and charge eleven of the twelve perpetrators, and bring them to Sydney for trial;
  • the trial judge at the second trial, Justice William Westbrooke Burton, who reinforced to the jury the sanctity of all life and set the tone for a fair hearing;
    the twelve white jurors in the second trial who were brave enough to convict the seven defendants in the face of hostile public opinion; and especially juror William Knight, who spoke up to correct the initial, incorrect verdict, so that convictions were recorded.

There is no doubt that the trials failed to stem the tidal wave of annihilations of the Aboriginal inhabitants of Australia. The hangings of seven of the perpetrators of the massacre merely served to drive future murderous acts underground, so that more surreptitious means, such as poisonings, were used instead of brutal, bloody slayings by sword or bullet or herding over cliffs or into swamps. However, one cannot assess the significance of the Myall Creek murder trials merely by that measure, just as one cannot assess the success of the Nuremburg trials in Europe after the Second World War by the number of genocides that have taken place in various parts of the world since.


In my view, the two trials in 1838 were more akin to modern-day war-crimes trials than to domestic murder trials, even though the concept of war crimes lay more than a hundred years in the future. There was undoubtedly an ongoing, internal, frontier war at the time, albeit rather one-sided, between the white settlers and the indigenous inhabitants whom the former were attempting to displace and disperse. The war against the indigenous population involved a systemic policy, often approved or acquiesced in by the white authorities, of unlawfully exterminating those Aboriginal people who stood in the way of the expansion of the English settlement or posed a threat to the white pastoralists and their farming activities. In my view, the perpetrators of the mass murders at Myall Creek Station on 10th June 1838 were motivated by genocidal intentions and their actions were an example of what we now call ‘ethnic cleansing’. The fact that almost the whole tribe was decimated – including old men, women and children – demonstrated only too clearly their genocidal intent. The subsequent sexual abuse of one female indigenous victim, who was spared her life, but only for what must have been a few excruciating days, illustrated the objectification of the victims. Recent history has shown that sexual violence often goes hand-in-hand with genocide, and that is why systemic sexual offences against enemy populations in war zones are now categorised as war crimes.

In addition, the actions of the perpetrators can be viewed as a classic example of what has become known as ‘collective punishment’ – a form of retaliation whereby a suspected offender’s family, friends, acquaintances, neighbours or an entire ethnic group is targeted for punishment, and where the punished group may have had no direct association with the act that is being punished. The victims in this case had been living peacefully on Myall Creek Station for several months and had done nothing to justify their victimisation.

Collective punishment has been categorised as a war crime since the 1949 Fourth Geneva Convention and genocide has been categorised as an international crime by the Genocide Convention that was adopted by the United Nations General Assembly in 1948 and came into force in 1951.

By modern-day standards, the actions of the Myall Creek murderers were war crimes and part of a deliberate, state-sanctioned genocide of the Aboriginal people that today would be punishable by the rules of international criminal law. The fact that vast numbers of genocidal murders in colonial Australia went unpunished would today provide evidence of state sanction, and would today justify international intervention in the prosecution of the perpetrators and their national leaders. While such laws did not exist in 1838, the approach taken by John Hubert Plunkett towards the case was consistent with them, and demonstrated an enlightened and visionary attitude that was unparalleled in his time or for more than a hundred years afterwards. John Plunkett did not just prosecute eleven men for murder. He prosecuted his entire society for its connivance in the attempted annihilation of the Aboriginal people and their culture. His contemporaries, consciously or subconsciously, appreciated that fact, and as a result vehemently resented him during the trial and for years afterwards. It was a testament to his persistence and tactical skills that he convinced twelve jurors to convict seven of the perpetrators, because they were not only condemning those men to their deaths, but also stingingly rebuking their own society.

While the trials and the convictions did not prevent future massacres, they stand as a beacon of humanity and interracial justice that illuminated the way for Australia to develop as a civilised nation. Australian schools, both primary and secondary, have always devoted a lot of time to teaching students about the great, white explorers – people like John Oxley, Charles Sturt and Major Thomas Mitchell. Very few schools, however, teach what almost invariably happened within a few years of the discoveries of the great explorers: the expansion of white pastoralists into areas that had previously been occupied by indigenous clans for millennia, the expropriation of their land, the destruction of their culture and society, and the massacres of tens of thousands of them in hundreds of locations all over Australia.


In my opinion, the story of what happened to the Aboriginal inhabitants in colonial times should be taught in our schools as readily as we teach the exploits of the great explorers. The two accounts are inextricably intertwined. One almost inevitably followed the other. A real acceptance by mainstream Australia of the horrors that were perpetrated against our indigenous communities in the colonial period will bring with it an understanding of the long-term trauma that has been transferred down the generations until today.

We readily recognise that the trauma of other genocides and crimes against humanity – such as those during the Nazi period in Europe, in the former Yugoslavia during the 1990s, and in countries like Rwanda and Cambodia – can be deeply felt for many generations after the killings have ended. If we acknowledge that Aboriginal communities were subjected to massacres in a multitude of locations all over Australia for more than a century, there may be more sympathy for the current generations striving for equanimity, understanding and acceptance.

Until we recognise that what occurred was a war of extirpation or annihilation, until we acknowledge that what was perpetrated amounted to an attempted genocide that today would be categorised as a war crime, and until we teach this to our children throughout Australia, we will not reach our full maturity as a nation.


Mark Tedeschi AM QC

Author of “Murder at Myall Creek: the trial that defined a nation”

11 June 2017

Professor John Maynard's journey began with a desire to piece together a family history and has now seen the University of Newcastle Professor become one of the world's most prolific and respected voices on Indigenous history, internationally regarded as an expert on issues ranging from military involvement to political activism and sport.

Myall Creek Memorial Talk

(Sunday 8 June 2014)

I am honoured to have been asked by the Friends of Myall Creek Memorial, to be today’s guest speaker. Back in 2009 I was awarded the Visiting Fellowship at the National Museum of Australia in Canberra. In order to do further research on massacres in northern NSW and across Queensland and into the Northern Territory, I drove the two and half thousand kilometres from Cairns to check out the ‘lie of the land’ and photograph massacre sites, and I paused here, at Myall Creek on my journey south.

Unlike today, I was the only living person wandering around this thoughtful and respectful memorial site, which due to the way it has been laid out, high-lighted the unique spiritual presence of the location. A hundred and seventy one years after the bloody event that took place on the plain below us, I felt an odd blend of empathy and compassion for the brutally murdered victims; horror at the cold-heartedness of the white bush workers; and a sense of doom for what I knew lay ahead for the Indigenes whose traditional lands were to the north of here. To me, this site bespoke 50,000 years of human occupancy by our original Australians imbued with an all-pervasive, integrated religious belief system, inextricably linked to the land; a perspective that was catastrophically disrupted with the invasion of their traditional lands of the Wirrayaraay. It has rightly become a site of National Heritage and offers the nation a symbol for reconciliation.

In June of 1838 a mere 50 years had passed since the First Fleet arrived at Sydney Cove. The European land-grab had expanded out from Sydney Town and the original 19 counties, over the Great Divide and up the Hunter Valley and the Valley of the Three Rivers from Port Macquarie and Grafton. Myall Creek was not the first or the last massacre to take place on the NSW frontier, but it was the first and only time that the perpetrators were held accountable and hanged. More importantly in the long run it heralded a major change in the attitude of the frontiersmen: the killings continued, but the whites kept quiet about it. Thus began Australia’s ‘conspiracy of silence’.

The 1840s saw European settlement rapidly expand into what became the Darling Downs and with it a constant series of violent clashes with the original land owners. It was towards the end of this decade that the New South Wales Native Police, commanded by Frederick Walker rode onto the scene. From the Macintyre River to Wide Bay, Walker and his troopers shot any Indigenous clan groups who were perceived as threatening the economic viability of the new settlers and their herds or flocks.

In October 1857 the Jiman around Hornet Bank station west of Taroom, retaliated against the raping of their women and other wrongs wrought upon them, and wiped out the station whites, including raping the women. Unfortunately this pay-back was to have calamitous results with a ‘squatter’s crusade’ following over the next six months and an ‘orgy of slaughter’ of some 400 Aboriginal people.

A year and half after absorbing the NSW Border Police, in 1861, the newly created Queensland Native Police were receiving particularly bad press and their cold-hearted violence was attracting censure.

An Inquiry was established by the Queensland colonial government which the Moreton Bay Courier damned as a ‘whitewash’ – and it was.

Then in October an event took place that totally distracted the public’s attention. The newly arrived Victorian squatter Horatio Wills and party were massacred by the local Kairi who had mistaken Wills for the owner of Rainworth station, who with the Native Police had killed members of the Kairi after wrongly assuming that they had stolen a flock of sheep.

Seven Native Police detachments rushed to the area and at least 370 Aboriginal people of the surrounding region paid the price for the 19 whites killed at Cullin-la Ringo.

The frontier kept moving further north – during the 1860s to the Gulf of Carpentaria, and onto Cape York Peninsula in the 1870s. With gold rushes to the Palmer River and then the Hodgkinson, there was a surge in the need for meat, and hence more cattle runs closer to their goldfield markets.

We have Sub-Inspector Frederick Urquhart who was involved in both these regions, leading his troopers – according to the euphemism of the day - in ‘dispersing’ large numbers of clan groups, between 1882 and 1889.

He was involved in the Cloncurry/Kalkadoon killings, later at Mistake Creek in 1884 and the Mein killings on Cape York in 1889.

This was a man who then transferred to the Queensland Police force and who, in 1912, had lead mounted charges against white strikers on Black Friday.

By 1917 he had risen to the position of Commissioner of Police, and retiring in 1921 was appointed administrator of the Northern Territory.

The Far North Queensland Girramayan Elder, Ernie Grant, recently observed that:

You can’t glorify the settling of Australia without glorifying the methods used to do the settling... my forebears were involved in a long-running series of frontier wars as each district was violently subdued, the colonial Europeans and their para-military Native Police, went on to ‘pacify’ the next. Our ancestors fought a guerrilla war which colonists at the time, readily admitted was a war on the frontier.[i]

And yet some white-fella’s are still pedantically arguing that it wasn’t a ‘real’ war. There is, as Raymond Evans has noted a “...public tendency to evade and elide – to ignore, deny and even erase less palatable aspects of the national saga.[ii]

Following-on from this fabrication this approach enabled the treatment of our Indigenous people to be side-lined and ignored in the 20th century.

Massacred on the “moving” 19th century frontier and incarcerated in concentration camps designated missions or reserves, the plight of our Indigenous people, certainly in Queensland, continued until the demise of the department that controlled every aspect of their lives, up until 1986.

Australia’s pre-contact Indigenous population has over the last 30 odd years been re-assessed, particularly as a result of the work of the economic historian Noel Butlin, who noticed that previous estimates had not factored in the devastating depopulation caused by smallpox and other infectious diseases in the tribes of the south-eastern part of the continent that the new-comers called NSW and Victoria.

It now seems more accurate to suggest that the original pre-contact Aboriginal population was between 750,000 and a million.

Utilising Butlin’s and others’ work, a colleague of mine, Robert Ørsted-Jensen has estimated a minimum Aboriginal population prior to contact, on a state by state basis.

Academic historians have skewed how Australian history has been presented. They have argued over Tasmania which had only 0.6% of the continent’s Aboriginal population; they have weighted heavily the importance of Victoria and NSW, which had respectively, 6% and 19% of the Aboriginal population, while virtually ignoring the importance of what became Queensland, which had by far the largest Indigenous population with nearly 38% or 300,000 people; a figure that some historians in the past have promoted as being the entire Aboriginal population of Australia.

This suggests that numbers killed on the moving frontier were much, much greater than previously thought.

So how do we interpret this?

Well, obviously it has been white historians who have written about the expansion of white settlement and in the process virtually ignored the original inhabitants. 

From my research I noticed that this process began in the late 19th century and became the ‘norm’ in the 20th.

White academic historians, particularly after World War II, were primarily located in the urban centres of Melbourne, Sydney and Canberra, and concentrated their writings on the activities of where the white people settled; so that they were not only southern-centric, but also euro-centric. Theirs was not a history of Australia, but a history of Europeans in Australia – for they failed to consider where the majority of Australia’s population was originally located – Queensland and Western Australia.

But even then, it missed the pivotal theme of frontier terror, violence and fear. All of this, despite the numerous publication of recollections of the ‘pioneering days’ that clearly identified what had gone on. Nevertheless, the 20th century historians, in trying to fabricate a national story perpetuated the myth of ‘peaceful settlement’. I suppose this should not surprise us, as it has always been ‘the victor who writes the history.’ However, at the start of the 21st century do we really want our history to be permeated by this form of distortion?

A criticism that has been levelled at several of my colleagues is that they haven’t consulted Aboriginal people about frontier violence or the frontier wars.

I began my initiation into the truth about our history when teaching Aranda children on the edge of the Simpson Desert in Central Australia, where I learnt about Aboriginal stockmen being whipped by their white overlords and heard the whispers of Coniston 50 years after the massacres.

On the west coast of Cape York Peninsula I heard the late Kokoberrin elder, Kenny Jimmy tell of the massacre of his people at Cattle Creek: ‘till today you can still see the bone’.

I have travelled with Aboriginal Rangers and Elders and heard many oral history recollections, on Mornington Island, Doomadgee and Lawn Hill.

I have heard about the ‘Dutches’ trying to take women against tribal law and paying the price with nine being speared by the Wik Ngathan near Aurukun, some 400 years after the event.

I have sat and listened with Kowanyama ‘old men’ at the mouth of the main Mitchell and heard them sing of the Storied past.

I have interviewed elderly Yidinydji and Djabuganydji and sat around the campfire and learnt from the other side of the frontier.

Like so many other migaloo I have learnt from the original inhabitants and felt the ancient rhythm of this land which together we call Australia.

Recognising the truth of our history, from the frontier wars, ugly violence and rape, to the dictatorial control of the 20th century concentration camps,[iii] euphemistically called missions and reserves, we can more honestly acknowledge these, as well as the aspects of which, we can more readily, be proud.

This is what a 21st century Australia has to synthesise and honestly come to terms with.

It is essential as contemporary Australians that we acknowledge that we are not responsible for what happened on our colonial frontier, but we are responsible for not acknowledging what happened. If we do not, our integrity as a nation is flawed and we are shamed as a people for perpetuating a lie – ‘Lest We Forget’.

 


[i] Personal communication with the author, Girramayan Elder, Dr. Ernie Grant.

[ii] R Evans review of A Bashford & S Macintyre (eds), The Cambridge History of Australia: Volume 1, Indigenous and Colonial Australia, Cambridge University Press, Port Melbourne, 2013,

[iii] This was not the case with the west coast Cape York Peninsula missions as they were established to stem the killings.