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Decisions of the Superior Courts of New South Wales, 1788-1899

R. v. Luttrell [1810] NSWKR 1; [1810] NSWSupC 1

Aborigine, assault of

Court of Criminal Jurisdiction
Bent J.A., 13 March 1810
Source: Indictment, Informations and Related Papers, 1796 - 1815, State Records N.S.W, 5/1146[1]
Source: Court of Criminal Jurisdiction, Indictments, Informations and Related Papers, 1796-1815, State Records N.S.W., 5/1146

[65] In the fiftieth year of the reign of our Sovereign Lord George the Third of the United Kingdom, Great Britain and Ireland King, defender of the faith. New South Wales to wit.

           Be it remembered that Ellis Bent esq. Judge Advocate of our Sovereign Lord the King for the territory of New South Wales who [prosecuteth] for our said Sovereign Lord the King in his behalf, in his proper person, cometh here into the Court of Criminal Jurisdiction holden in Sydney in the said territory, for the trial of all and all manner of felonies and misdemeanors and other offences whatsoever on Monday the twelfth day of March in the fiftieth year aforesaid, and for our Lord the King, giveth the court here to understand and be informed that Edward Luttrell late of Parramatta in the territory aforesaid, gentleman, on the nineteenth day of February in the fiftieth year aforesaid, which force and arms at Parramatta aforesaid, in the territory aforesaid in and upon a certain native of the territory aforesaid, called or known by the name of Tidbury in the peace of God and our said Lord the King then and there being wilfully and violently did make an assault, and that the said Edward Luttrell with a certain gun then and there loaded and charged, with gun powder and one leaden bullet or a piece of lead, which gun the said Edward Luttrell in both his hands then and there had and held to, against, and upon, the said Tidbury then and there did wilfully maliciously shoot and discharge and that the said Edward Luttrell [66] with the leading bullet aforesaid out of the gun aforesaid then and there by force of the gunpowder, shot, and discharged as aforesaid, the aforesaid Tidbury in and upon the mouth of the said Tidbury wilfully and maliciously did strike penetrate and wound, by means whereof the said Tidbury became weak and distempered and continues so, weak and distempered for a long space of time, to wit, from thence, until the day of the taking this inquest, and other wrongs to the said Tidbury then and there violently and maliciously did, the great damage of the said Tidbury to the evil example of all others, the like case offending, and against the peace of our said Lord the King his Crown and Dignity.

           Witnesses for the Crown

           1. Hannah Conaway

           2. George Kayley

           3. James Wise

4. James Milham.

Source: Court of Criminal Jurisdiction, Minutes of Proceedings, March 1810 to August 1811, State Records N.S.W., 5/1119

[1] Edward Luttrell brought before the court charged with an assault upon one Tidbury (a native) for wounding him by discharging a gun loaded with a leaden bullet at him.

Plea not guilty ...

Susannah Conway sworn, says she lives at Parramatta, is acquainted with Mr Luttrell by sight. Knows also one Tidbury by sight. That near six o'clock on the 19th February, she went into her garden and heard a noise towards the bushes, near Mr Luttrell's. She looked and saw a black man and woman quarrelling. About ten minutes after she saw Tidbury come up to the garden where she was. That while she was talking to Tidbury and another black man, she saw Mr Luttrell standing about 60 yards off. He had a gun in his hand. He had it levelled towards the black. She saw him fire off the gun. She saw Tidbury fall and that afterwards he got up and ran away. Before the accident she heard one of the other Luttrells, for the father was there also, called out "damn your bloods do not fling your spears here".

Questioned by the defendant. Says that she did not see Mr Edward Luttrell the defendant, and Tidbury at the same time that she saw Mr Edward Luttrell fire and looking immediately after saw Tidbury fall. She does not know anything that might have occurred between the defendant and Tidbury before the accident. Says that she never had quarrelled with defendant or his family and has no reason to bear any of them malice. Tidbury, she believes, had some spears in his hand when he came up to her garden.

George Kaley sworn, says he lives at Parramatta. That about an hour before sundown, on the afternoon of the 19th February, he saw Tidbury sitting down on the ground about 300 yards from his garden. He was bleeding and that his upper lip was perforated. Witness opened Tidbury's mouth and observed it much lacerated. That he saw Tidbury after several efforts take out a ball, which was produced to the court.

Questioned by defendant. Say he had given the natives arms to go a shooting with.

[2] James Wise sworn, says he lives at Parramatta. That he knows Tidbury and his wife. Says in the same afternoon before the accident he saw Tidbury come out of Thomas Eccle's house, next door to the witness, very much intoxicated. His wife he saw nearly in the same state. That Tidbury and his wife were quarrelling very much and he saw her run away. That Tidbury was left in the kitchen. That witness heard the report of a gun immediately after he saw defendant with the gun in his hand. That she then saw near Mr Luttrell some smoke about five minutes after witness saw Tidbury. Saw him led by one Peter a black along the field and afterwards saw him sit down. That he was wounded in the upper lip. That he saw Tidbury take a ball from the inside of his mouth. Saw the ball. That in about ten minutes he assisted in taking Tidbury away to Kaley's house.

Questioned by the defendant. In about half a minute after hearing the report of the gun, he saw Mr E. Luttrell.

Mr Mileham sworn, says he is Assistant Surgeon at the Hawkesbury. He believes he visited Tidbury a day after the accident. He saw the wound which appeared to him gun shot. It had punctuated the upper lip. That it appeared to him that it had been inflicted by a spent ball.

Mr Luttrell in his defence says that the day before he had heard that certain natives had threatened to assassinate some of his family. That on the 19th while he was at tea two persons called out that the natives had speared his sister. Upon that he rose and went out with his gun and shot Tidbury as he was running away.

Elizabeth Anstey sworn, says that on the 19th February she gave the defendant the alarm that the natives had thrown a spear at his sister. That while she and the defendant's servant were in the garden speaking to a black woman at the bottom of it, Mr Luttrell's younger sister came out, and she saw Tidbury, who was coming up at the time with several spears, heave one very forcibly at Mr Luttrell's sister which went within an inch of her head. This spear fell in the yard. The spear produced which she swore to be the one thrown by Tidbury at defendant's sister.

Thomas Nugent sworn, says he is servant to the hospital at Parramatta. Says he was present when he saw Tidbury throw a spear at Mr Luttrell's sister.

[3] Louis Peter, a native of India and Roman Catholic, sworn says that he is servant to Mr Edward Luttrell. Says he was present in Mr Luttrell's garden on the 19th on the afternoon with Elizabeth Anstry. That when the child came out he saw Tidbury the black fling a spear at it. The spear shewn to him says it is the one thrown at the child.

Verdict - not guilty.

Note

[1] The native Tedbury had held animosity towards the colony for some time leading up to this trial (see Sydney Gazette, 19 May 1805 and 15 October 1809). Lisa Ford suggests that diplomatic considerations were critical in the trial. Tedbury, who had been repeatedly involved in acts of violence, "had been the object of diplomatic negotiations in the period - his release from custody had been brokered by local Aborigines in return for a promise of peace in 1805". Here again, we see provocation or self-defence successfully used as justification for violent acts against Aborigines. Ford observes that "the colony may have feared that unprovoked shooting could lead to further violence".
For other original material on this case, see Court of Criminal Jurisdiction, Miscellaneous Criminal Papers, State Records N.S.W., 5/1152, pp 357 and 359; Sydney Gazette, 24 February 1810 (indictment) and 17 March 1810 (acquittal). See

L. Ford, Settler Sovereignty: Jurisdiction and Indigenous People in Georgia and New South Wales 1788-1836, Ph.D. dissertation, Columbia University 2007, (forthcoming revised manuscript: Harvard University Press, 2010), 225.

Published by the Division of Law, Macquarie University