As the colony continued to expand, Britain instructed NSW Governors that the law should protect Aboriginal people. This often did not happen. The prosecution and execution of the seven men responsible for the Myall Creek massacre was an exception, and happened partly because some white colonists were prepared to give evidence of what they had seen. However, there was significant public backlash and it was the only time that such perpetrators were convicted and hanged.

Please note, this subject and its documents contain graphic descriptions of violence and other distressing content.

Violence on the Liverpool Plains

Through the 1820s and 1830s the frontier continued to expand through squatting (unlawfully taking land beyond the boundary of the colony) and land grants to settlers (see for example SUB0536). Settlers used convict labour and also employed stockmen to look after their property.

On the Liverpool Plains in the 1830s, this expansion led to attacks and raids by Aboriginal people and acts of violent reprisal and revenge by settlers and stockmen (DOC6118, DOC6371, DOC6372, DOC5917).

In response, Acting Governor Snodgrass sent Major James Nunn of the Mounted Police to the area. This resulted in in several conflicts, including the Waterloo Creek Massacre on 26 January 1838 at which an estimated 40 to 50 Gamilaraay people were killed (DOC6125).

The British government had become concerned about the treatment of Aboriginal people in its colonies. An 1837 Parliamentary Select Committee Report found:

>Many deeds of murder and violence have undoubtedly been committed by the stock-keepers (convicts in the employ of farmers in the outskirts of the colony), by the cedar cutters, and by other remote free settlers, and many natives have perished by the various military parties sent against them (DOC0014).

These concerns were reflected in Royal instructions in July 1837, which said that Aboriginal people should be considered ‘Subjects of the Queen’ and offered protection under the law.

The instructions also ordered that any death of any Aboriginal person caused by ‘the Queen’s Officer, or of persons acting under their command’ be investigated (DOC5912).

In response to these instructions, the new Governor Gipps said he would order inquiries into the death of any Aboriginal person in which a white man was involved, not only military officers (DOC6214). He also ordered an investigation into Major Nunn (DOC1159).

However, Gipps also expressed frustration at the difficulty of stopping these ‘frequent’ acts of violence from happening (DOC6214).

Massacre

In 1838, a community of Wirrayaraay (or Wirryaraay) Aboriginal people lived at Myall Creek Station in Northern NSW, a community of Wirrayaraay (or Wirryaraay) people lived peacefully on the land, with the knowledge of the workers (including ‘stockmen’) on the station (DOC6217, DOC6284). Stations were large tracts of land used by wealthy landholders to raise stock or grow crops.

On the evening of 10 June 1838, while the station manager was away, a number of armed stockmen surrounded the Wirrayaraay people. They tied them together, led them away from the camp and killed them all except one young woman, who was abducted. Then they burned their bodies. At least 28 men, women and children died.

There were two workers on the Myall Creek station that night. One, Carles Kilmeister, joined the stockmen in their violence. The other, George Anderson, tried to stop them and help the Wirrayaraay (DOC6217, DOC6284). Anderson would later give evidence in court against Kilmeister and the other men (DOC6284).

Trials

When news of the killings reached Sydney, Gipps informed the Executive Council (a group of officials appointed by the Governor to provide advice on the governance of the colony) (DOC5611). The Council recommended that Police Magistrate, Edward Denny Day, be instructed to investigate the matter (DOC6416). Eleven men were ultimately charged (DOC6217).

A trial began on 15 November 1838, with the accused charged with murdering an adult Aboriginal man. All eleven men were found not guilty, but the Attorney General, John Plunkett, immediately said he would bring further charges (DOC6284).

The second trial involved seven of the accused men, who were charged with the murder of a young boy.

Gipps later acknowledged that only seven men were charged to allow for the possibility that the seven men would call the other four to give evidence in their defence, but they did not do so (DOC5915). During the trial, the Attorney General argued that this was evidence of their guilt (DOC1254) and the men were found guilty by the jury (DOC1254, DOC5914).

After an unsuccessful appeal, the men were sentenced to death. The Judge graphically described the crime and said he had been ‘deeply affected – to tears’ (DOC1254).

Gipps and the Executive Council rejected petitions for clemency (DOC6419, DOC6283) and the seven men were executed on 18 December 1838 (DOC5915, DOC6286).

The remaining four men were eventually released after the Attorney General admitted the evidence of Davey, an Aboriginal teenager who witnessed the massacre, could not be used (DOC6211, DOC6563) (see SUB0021 for more information about restrictions on Aboriginal people giving evidence in court).

Response

The British government agreed with the steps taken by the Governor in response to the Myall Creek massacre (DOC5916). However, there was public backlash against the arrest, especially from outside Sydney.

Landowners raised money for the accused’s defence and petitioned the Governor ‘praying for protection’ (DOC6193, DOC6272), while a magistrate encouraged the men not to testify against each other (DOC6193). This led Governor Gipps to strip the magistrate of his role (DOC6193, DOC6210).

The Sydney Herald published inflammatory articles about Aboriginal violence and blamed Governor Gipps for failing to respond to the need of settlers (DOC6262, DOC6264, DOC5905). An editorial on the day the second trial was due to begin (DOC6266) made the Attorney General express concern in court that jurors would be influenced by it (DOC1254).

While other newspapers were more supportive of the prosecution and condemned the violence, some suggested that the stockmen on trial were likely acting (DOC6275, DOC6283, DOC6286, DOC6287).

The hostile public response to the Myall Creek trials appears to have discouraged accountability for other massacres.

The alleged murder of nine Aboriginal people in August 1838 was investigated by Edward Mayne, but never went to trial (DOC6630, DOC1168).

The Executive Council decided not to pursue action against Major Nunn after the long-delayed investigation into his actions at Waterloo Creek (DOC6125). In his opinion about that investigation, Attorney General Plunkett referred to the ‘excitement’ further proceedings would cause in the colony (DOC6125).

Ultimately, Governor Gipps responded to the continued violence on the frontier by establishing the Border Police (this is the subject of forthcoming research).

Myall Creek Today

The Myall Creek Memorial site was opened in 2000 by the Myall Creek Memorial Committee, now known as the Friends of Myall Creek Memorial Incorporated. There is a commemoration of the massacre every year (DOC6298).

In 2008, the site was included in the National Heritage List (DOC5902). It is one of the few explicit commemorations of a massacre from the Frontier Wars.

In 2023, the Sydney Morning Herald offered an apology for its reporting on the massacre and the trial (DOC6212).

Further information

Towards Truth focuses on the law and policy of this period. However, many academics, scholars and experts have written about the Myall Creek massacre. Further information can be found in the Discussion and Analysis Documents (DOC6291, DOC1168, DOC6562).

R v Kilmeister (No 1) [1838] NSWSupC 105 (15 November 1838)