One Law for All? by Alan Pope

Author:Alan Pope [Pope, Alan]
Language: eng
Format: epub
Tags: History, Australia & New Zealand, Law, Criminal Law, General, Legal History
ISBN: 9780855757489
Google: bkwQpxDV7p4C
Publisher: Aboriginal Studies Press
Published: 2011-01-15T16:02:50+00:00

CHAPTER 9

PROPERTY OFFENCES

It could be reasonably expected that there would be many cases coming before the courts relating to offences by Aboriginal people against European property, such as theft, larceny, breaking and entering, sheep stealing, stock theft and the killing of stock. This proved not to be the case — for example, only forty-nine Aboriginal people were charged with theft between 1836 and 1862. Of these twenty-four were found guilty, eight not guilty, while in the fifteen remaining cases the prosecution was either abandoned or not proceeded with. Perhaps this small number can be explained by most of the cases being heard by district magistrates, where records are no longer available, but this does not seem to the case either. Only minor cases within the above categories, namely those involving goods of less than five pounds in value,1 could be heard in local courts, with all accused in more serious cases being remanded to Adelaide. In fact, the records suggest that where Aboriginal people were involved there was a tendency, if not a firm policy, to remand the accused to Adelaide even where lesser amounts were involved.

Within Adelaide itself there were relatively few thefts by Aboriginal people reported, especially considering the large number of Aboriginal people who came to the capital during the 1840s. This was partly because of the difficulty of identifying Aboriginal offenders but also a general tolerance of Aboriginal people visiting the town and a reluctance by officials to prosecute urban Aboriginal people for minor offences. Not all colonists were sympathetic, however, and at times they insisted on charges being laid. Several points can be made about Aboriginal theft in the towns. First, Aboriginal people themselves had some difficulty understanding the antagonism aroused by their petty thefts, particularly where they felt that the settlers had incurred some personal obligation towards them through their earlier actions. Reciprocity demanded that they be given something in return for their labour or favour, however minor — when they were not so rewarded there seemed little harm in taking something. This was the situation in April 1842, when Pritto Monaitya was arrested while attempting to sell a watch that he had taken while employed to cut firewood — he received one month in gaol and a public whipping.2 Second, most thefts were minor and often motivated by genuine need, such as when a shirt, a blanket, some flour or a loaf of bread were taken. In the winter of 1841, for example, Yakaria, Puyurin and Wittoari were convicted of the theft of blankets and clothing, each receiving a sentence of twelve months’ imprisonment.3 Indeed, hunger often motivated thefts by otherwise honest town-based Aboriginal people. For example, in 1841 Korda was gaoled for ‘stealing a loin of mutton from the shop of Richard Pepperall, value 3s’.4 Third, some charges involved acts which were more in the nature of disagreements or misunderstandings as to who controlled the resources within the town acres. For example, in 1852 when ‘Tommy’ and ‘Mary’ were charged with the

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