(Warning this blog may contain names and voices of deceased Aboriginal and Torres Strait Islanders).
On 18 December 1838, seven men were executed by the New South Wales Colonial government at the Sydney Gaol. Their crime was one of the most heinous in Australia’s history and remains an event that scars the colonial period to this day.
Two trials, and a third that was abandoned, divided public opinion at the time, with contemporary newspapers giving different views on the proceedings; their opinions spilling over into the public forum to display an ugliness that fermented within the expanding British colony.
Late on the Sunday afternoon of 10 June 1838, at least 28 Wirrayaraay men, women and children were killed on a property not far from present-day Inverell. The unthinkable act was carried out with swords and pistols, and became commonly known as the Myall Creek Massacre. Some of the victims were decapitated.
The day following the massacre a group of men returned to the site of the massacre. In an attempt to erase the evidence of their crime, they grouped the bodies together and set fire to them.
The trial(s) were unique during the period, not because a group of white men had killed Aboriginals, but because seven of those men, who were both workers and assigned convict on Henry Dangar’s property, were arrested, put on trial, and eventually executed for their crime.
The guilty verdict passed by a civil jury to Justice Burton in the Supreme Court caused a sensation in Sydney and throughout the colony. Members of the public and businessmen made open threats of violence towards the jurors after learning of the trial’s outcome.
It was alleged that publican, Thomas Douglass said to the jury foreman soon after the verdict was passed down, that: “… he and the other jurors…deserved to be hanged for finding them guilty…”.
It had been a different story in mid-November of 1838. At the conclusion of the first trial under Chief Justice Sir James Dowling, the jury had found the accused not guilty, and cheers had rung loudly from the gallery. The Attorney-General, John Hubert Plunkett, had been defeated on a technicality, but he also attracted scorn for requesting that the men be remanded in custody for a second trial on separate charges relating to the same event: that indictment cited twenty charges in all.
A defence that circulated through the streets, hotels and homes of colonial NSW from the moment that the eleven men were arrested, was that many white settlers, pushing the frontier boundaries further north, south and west on the Australian continent, had been brutally killed by Indigenous people.
Theses killings had happenned across the frontier, but the group of Aboriginals murdered on the Myall Creek property were known to be peaceful and on good terms with the settlers. This point aside, the murder of the defenceless Indigenous men, women and children at Dangar’s Myall Creek property displayed the prevailing attitude within the out-lying region; an area (as that of the Hunter’s River region) likened to a colony within a colony, where local magistrates interpreted and executed laws to suit their own needs.
If the act was indeed one of retribution, it makes it all the more despicable for the assumption of the right and the enacting of those beliefs on those who were so vulnerable.
The NSW Governor, Sir George Gipps, was incensed by the magistrates of the frontier region and the power that the large land owners wielded. The colonies need for produce gave men like Robert Scott (land owner and magistrate) and Dangar an aristocratical presence, with their wealth having influence through the press and through the courts.
It was a well-known fact that these men, along with others, paid for the defence of the Myall Creek murderers through a group called the ‘Black Association’; a deliberately unveiled name that illustrated their attitudes towards the Indigenous people of Australia.
Despite the execution of the convicted murderers, the case did not have the effect that the prosecution may have envisaged. The killing of Aboriginal people continued without reprisal from the law for decades, with those committing the acts becoming more secretive and enclosed within tighter groups.
This clandestine approach was not always the case, with men such as Constable William Willshire recording the killings of Indigenous people in Central Australia in writing, well into to the late nineteenth century.
Willshire was also arrested and charged with the murder of Aboriginal men, but a fund raised for his defence helped to see a verdict of not guilty handed down in a Port Augusta court.
The remaining four men who were to stand trial in the third Myall Creek hearing were as guilty as those that were to face the hangman’s noose on 18 December 1838, but they were saved from the same fate by a sympathetic sentiment that remained strong within the colony.
The third trial was set to commence in February of 1839, after Plunkett had requested time to prepare a material witness named Yintayintin (known as Davey at Myall Creek), who stated that he had witnessed the Myall Creek Murders.
Despite Crown evidence given after the massacre that Yintayintin was not at the scene, Justice Burton agreed, but the trial never eventuated.
Yintayintin mysteriously could not be found. Whether he went into hiding, or was killed, has never been proven, but the reason given for the collapse of the third trial was Yintayintin’s understanding of what an oath was, and therefore his ability to take that oath in court and act as a reliable and suitable witness.
This idea has been challenged by many historians as a cover for a political motivation.
An appeal on behalf of the seven men sentenced to death was heard on 5 December. It was quickly dismissed by a panel of three judges, but public sentiment still ran high in favour of the guilty men. It is argued that further convictions would dangerously strengthen this mood, while some thought Plunkett was of the opinion that a not guilty verdict in the third trial would undermine the verdict of the second trial.
This last point, and the reliance of Yintayintin on a guilty verdict, add weight to the accusations of yielding to public sentiment, because the guilt of the seven men during the second trial was established without his testimony, while Plunkett’s concerns could be allayed by the fact that the second trial was successful.
It is of interest that the four men to stand trial in early 1839 were a part of the original 11 in the first hearing (A 12th individual, a free settler, had evaded arrest and was never located). Attorney-General Plunkett placed just seven on trial in the second hearing. It was a tactic that was meant to see the remaining four called as witnesses to defend those on trial. If that was to happen, Plunkett could cross-examine them, if they didn’t get called to the stand, in Plunkett’s words, it would be: “…presumptive proof of their guilt…”.
The Myall Creeks massacre is an Australian historical event that went largely unrecognised for over 150-years, but in recent decades it has received the academic and public scrutiny that it deserves. A passage that was absent from previous school historical curriculums, it is now taught in contemporary secondary school classes.
In the year 2000, a stone monument and plaque were erected near the site of the Myall Creek atrocity as a memorial to the Wirrayaraay people who were murdered.
Ballantyne, J, H., ‘Myall Creek Massacre, 1838’, Letter, Australian Museum on loan from the State Library of NSW.
National Library of Australia, ‘Trove’: The Australian, The Colonist (Sydney), Commercial Journal & Advertiser (Sydney), Sydney Gazette, The Sydney Herald, The Sydney Monitor.
Australian National University, ‘Australian Dictionary of Biography’.
Milliss, Roger, Waterloo Creek: The Australia Day massacre of 1838, George Gipps and the British conquest of NSW, Ringwood, McPhee Gribble, 1992.
Ritchie, Jim, ‘Politics v Justice: A fresh look at the third trial following the Myall Creek Massacre of 1838’, Royal Australian Historical Society, JRAHS, vol. 109.
Lydon, Jane and Lyndall Ryan (Eds.), Remembering the Myall Creek Massacre, Sydney, NewSouth, 2018.
Tedeschi, Mark, Murder at Myall Creek: the trial tht defined a nation, Simon and Schuster, Cammeray, 2017.