Tinteán

Murder at Myall Creek by NSW QC Mark Tedeschi describes itself as the story of ‘the trial that defined a nation’. In fact, there were two trials concerned with the murder of up to 30 Aborigines at Myall Creek in 1838. Myall Creek was then a station or run in Northern NSW about 350 miles from Sydney, operated by a squatter operating beyond the legal ‘limits of location’ in the colony.

The book is equally the story, a biography really, of the prosecutor at both trials, John Hubert Plunkett, NSW Attorney General from 1836 to 1856.

John Plunkett was born in Roscommon, Ireland in 1802 into a long established family with aristocratic connections extending back many generations.

The Plunkett family included as one of their number Oliver Plunkett, former Archbishop of Armagh, who was executed in July 1681 as a victim of the fantastic ‘Popish plot’, a farrago of lies fabricated by Titus Oates which however led to the trial and execution of a number of English Catholics.

Marker showing location of the ‘Tyburn Tree’ where hundreds of English Catholic martyrs were hanged, including Oliver Plunkett. Photo by Keith Harvey

Oliver Plunkett was the last of the Catholic martyrs in England, arrested in Ireland, unsuccessfully tried there and later tried and convicted in London. On July 1^st 1681 he was dragged through the streets of London to be hanged, drawn and quartered at Tyburn for ‘high treason’.

Nearly 150 years later, John Hubert Plunkett, was able to take advantage of the easing of the penal laws relating to Catholics in the early years of the 1800s. He was a contemporary of Daniel O’Connell and assisted him in the election campaign in 1830 in which O’Connell credited Plunkett with his electoral success in Connaught. Plunkett, who had studied law and had been admitted to both the Irish and English bars, considered that despite the relaxation of the penal laws his prospects for advancement in Ireland or England were limited.

He  sought – and obtained with the assistance of O’Connell’s influence in the new Whig Government – the post of Solicitor General in NSW. Plunkett’s appointment to this senior judicial post in the colony was the first appointment of a Catholic to a significant position of legal authority. This was made possible in part by the liberalisation of the Test Act which had previously required candidates for public office to make statements as to faith and the religious supremacy of the English monarch which Catholics in good conscience could not make.

John Hubert Plunkett

Plunkett arrived in the colony in 1832 with his wife Maria. He served as Solicitor General until 1836 when he was appointed Attorney General, a position that he held until 1856 when the colony achieved self-government.

Plunkett was Attorney General when the Myall Creek massacre occurred in 1838. He was charged with the job of prosecuting 11 convicts and ex-convicts accused of massacring innocent Aborigines – principally women and children and older males – in an episode of what would now be called ‘ethnic cleansing’ but was simply premeditated murder.

The ringleader of the group escaped capture [and was never prosecuted] but the crime was thoroughly investigated, and the 11 others [10 whites and one African-American], arrested and brought to Sydney for trial. Some of the accused were English, some Irish, some Protestant and some Catholic.

There were many problems faced by Plunkett as prosecutor. The perpetrators and their allies had attempted to remove the evidence of their crimes, including burning and then disposing of the bodies. It was difficult therefore to say who had actually been killed. The only witness to the actual killing was an Aboriginal man, Davey, and Aborigines were not able to give sworn evidence in court. It was considered at the time that since Aborigines were not Christians they could not give sworn evidence because such evidence depended on the witness fearing eternal damnation if they lied.

To add to Plunkett’s woes, while the English Government and its Governor in NSW held that Aborigines were British subjects and entitled to the full protection of the law, nearly the whole of the rest of the white population of NSW opposed the trial.

Plunkett was up to the job however. Tedeschi’s account of him is reminiscent of Saint Thomas More. Both were men of unbending principle and resolute character. With NSW white society arrayed against him, Plunkett brought all 11 accused to trial. In those days, only one charge of murder could be prosecuted at a time, so Plunkett chose to charge them with the murder of the victim who could be best identified.

However, the jury acquitted all 11 accused. Plunkett had to decide whether to allow the judge to release them, since he had presented his best case. He chose not to consent to their release, and had them remanded. He subsequently charged seven of the 11 with a further murder, that of a child whose rib bone had been found at the murder site.

Sydney public opinion was again outraged at this tactic. Plunkett chose to charge only seven men hoping that the other four might take the opportunity to turn against their colleagues and give evidence for the Crown. None did but this time the jury convicted all seven of murder and all seven were subsequently hanged, the only sentence available for murder.

While the book claims to focus on the murders and the trials, it continues to document Plunkett’s life and work in the colony until his death in 1869. Plunkett played a prominent role in Australia’s legal system, wrote a Magistrate’s handbook, promoted laws to allow Aborigines to give evidence and for Australian laws to be non-discriminatory as between religions. Plunkett became Australia’s first Queen’s Counsel.

Although he was an Irishman, Plunkett  had high regard for English laws and the English judicial system. (His knowledge of the farcical trial of Oliver Plunkett should have been a lesson that the English system of justice can be and has often been misused, particularly in respect to Irish citizens).

After self-government, Plunkett became an elected MP in NSW and served as elected Attorney General and in many other public service capacities.

However he managed to put himself offside with the Catholic Church in Australia  because of his support for an education system in the colonies based on the Irish National school system. The Catholic Church however, preferred government aid to denominational schools.

Plunkett was a founding member of the Senate of Sydney University. He assisted, as did his wife Maria, the establishment by the Sisters of Charity of St Vincent’s Hospital in Sydney. St Vincent’s was to treat all comers on a non-denominational basis. His portrait hangs in the foyer of the hospital today.

When Plunkett died he had little money and few assets, insufficient to support his wife after his death. He had not taken the opportunity, unlike many others, to enrich himself in the colony.

The vestments of St Oliver Plunkett in St Mary’s Sydney from the St Mary’s Cathedral website

After his death, his widow Maria donated to the Church a number of relics of Oliver Plunkett that John had brought with him to Australia, including a chalice and vestments. These are now currently at St Mary’s Cathedral, Sydney. The chalice is apparently in poor condition and not on display, but the vestments can be viewed.Oliver Plunkett was not canonised until 1975 by Pope Paul VI . He was Ireland’s first new saint in seven hundred years. Australia can thank John Hubert Plunkett for our connection with the famous saint. Mark Tedeschi also deserves thanks for bringing to our attention this notable Australian of Irish origin. His account of this man and these events is highly readable,  records a significant event and gives recognition to a little known character in Australian history.

Tedeschi, Mark, Murder at Myall Creek, Simon & Shuster, 2016, $32.99

Further reading: Sources

Keith Harvey is a regular contributor to Tinteán