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Kudnarto
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Shepherds
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Adams
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Childhood
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Engagement
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Wedding
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Land
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   The Licence
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Farming
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Copper
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Murder

The Trial

Skilly Creek
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   Tim
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Death
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Land Claim
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Letters
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Handwriting
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Police Court

Trial Report

The Civilising
   1840
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1860 Report
   1860
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   Infanticide
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   Blame the victims
   British Law
   Land Loss
   Social Alienation
   Tokenism
   Conclusions
   Footnotes
   Bibliography

Tom & Tim
   Introduction
   Poonindie
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Bibliography
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Kudnarto

Chapter 17 ~ The Trial

Excitement    Mansforth    I have a dream    Opposition    Processing    Approval    The Licence    Notification    Scams    Footnotes   

Note about Footnotes. All footnotes are directly linked to two transcibed newspaper articles which are to be found as Appendix 4 and 5. If a footnote comes from another source, it will be attached to the bottom of this chapter as in all other chapters.

Excitement

At Adelaide, on Monday, August 19, 1850 James Yates was brought to the Supreme Court and charged with the murder of John Mansforth. The charge was read out to Yates and he was asked by the clerk how he pleaded.

"Not guilty!" Yates replied in a firm tone.

From the bar of the court sitting before Justice Crawford, the Advocate General, William Smillie, opened the trial when he addressed the Jury.

"It is our very responsible duty this morning," he said, "to investigate the most serious charge that can be brought against any human being, the murder of his fellow man. It is not my duty to enlarge on the particulars of this crime, and even if it were, every circumstance in this case could add to the horror and disgust which its recital must excite in the breast of every one.

"Yates and Mansforth were both in the service of a gentleman named Slater, and were inmates of the same hut, the latter being employed as shepherd and the former as hut keeper. Mansforth was a military pensioner, of steady and respectable habits, highly esteemed by his employer, and had left a wife and family to deplore his loss.

"On the day preceding his murder (the 23rd July) he had been to his employer for the purpose of receiving his quarter's wages, amounting to 6, and that gentleman, after paying him, had sent by him a message to Yates to the effect that Yates was to come to him on the 24th, as his engagement would terminate on the 26th, and another man was ready to take his place. This was on a Tuesday.

"On the Thursday Yates did come to Mr Slater, and that witness would detail what then transpired between them. From some arrangements that had been made between Yates and Mansforth, the latter came to Hoile's public-house on the Wednesday, and there met him, and what occurred there would be related by the barman, Hawkesworth. Yates had seen him pay for a bottle of whisky with a six-pound cheque, and receive the change, amounting to about 4. Some time later he leaves the house, followed by Yates; and after the expiration of about twenty minutes, returns; complains to the waiter of ill-usage from Yates and from his persuasion leaves his money under his charge. He then goes away, taking the same road that he did before - the same which Yates had taken, it being towards their hut. This was the last that had been seen of him alive.

"We then pass over an interval of about three hours, and find Yates at the house of the witness Titcume, and there admitting that Yates was involved in a conflict with Mansforth, to account for his thumb being cut. The Jury, also would well weigh some expressions mad use of there by him. Yates then goes to the hut of Adams, and there passes the night, and there as well as at Titcume's his manner is strange, and his clothes covered with blood. That night Yates is sleepless, he walks about, mutters strangely.

"Yates has yet another object to accomplish, which accounts for his remaining so long near the scene of his crime, and where the evidence of his guilt are still existent. Yates has yet to receive the balance of his wages. Had Yates obtained from the pocket-book of Mansforth the paltry reward of his fearful deed, Yates might have escaped from the toils of justice but Yates is unprovided with that for which he had periled his life, and therefore next morning goes to his employer, and tells him that he had slept at the hut that night, but that Mansforth had not come home, his sheep having been brought home by two native women. Yates then quits his master's service two days before the expiration of his term of service, and comes to town by the mail cart.

"But Providence, in its inscrutable decrees, would not allow this barbarous murder to go unpunished and reserved for the humble agency of a native woman the discovery of the mangled body of the murdered Mansforth. The medical witness would prove, indeed medical evidence was hardly necessary to do so, that Mansforth could not have met his death otherwise than be the hand of man, Near the body are found the instruments with which the crime had been committed - a bloody knife, corresponding to a wound in the abdomen, a large ironstone, and fragments of stick covered with blood and hair. It was not necessary to inquire in what sequence the blows had been inflicted, or by what particular agency the life had been destroyed: it was enough for them to know that say one of them would have sufficed.

"On the Saturday Yates was apprehended in town by the police, whose vigilance in the matter deserves the highest praise, on information which had been promptly forwarded immediately after the discovery of the body. In his bundle were found clothes saturated with blood, and although that might partially accounted for by the cut in his thumb yet that wound no one could scarcely have shed the quantity with which everything that Yates wore was stained. But they would also remember that the only way in which Yates had attempted to account for that cut was that he had fought with Mansforth.

"I will now call witnesses to substantiate the statements I have made and I think the case would be established so completely that you the Jury would have no other alternative than, however painful to you individually, and awful in its consequence, to convict Yates."

After all the evidence was given by the various witnesses and cross examination was completed, Mr G.M. Stephen, the counsel for Yates addressed the Jury for the defence.

"I can not," Stephen said, "expect the same attention from you, wearied as you must be in body and mind, as you doubtlessly would bestow it if I had the advantage of addressing you at an earlier period of the day. I much regretted that both the learned gentlemen who were named by his Honour as likely to assist in the defence of Yates, had declined that onerous task, on the ground that his Honour had not made the request personally to them. It really is a task involving such responsibility, that few gentlemen would undertake and it would also entail a considerable loss especially as have gentlemen acted as attorneys as well as barristers. In every point of view I much regret that refusal, for I feet that on my exertions in some degree depends the life of Yates.

"I am, however, satisfied that I can convince the Jury that Yates is not guilty of killing Mansforth with malice aforethought, a necessary ingredient in the dreadful crime of murder. So certain am I that I could do so, that I will not attempt to rebut the presumptive evidence relied on by the Crown, that Yates inflicted the blows which occasioned death in that lamentable case. I will admit that, but will also show that the manner did so when he was not in perfect possession of his self-command, or that he had not acted on premeditated malice of murderous intention.

"I would call the attention of the Jury to the evidence of the barman from which it appeared Yates had drunk three glasses of rum and although drunkenness did not exempt a man from the consequences of crime, still, in the capital charge of murder, it was competent to the Jury to take that fact into consideration, when weighing, as you were bound to weigh, the motives which led to the outrage, whether it arose from the impulse of momentary passion or from a deliberately formed design. The learned Advocate called attention to the fact that the murdered man carried away a bottle of whisky, and that Yates had in his intoxication insulted a young woman in the public-house - that nothing could be more reasonable than to suppose that a quarrel and fight ensued between the friends, the murdered man and Yates.

"That case rested wholly on presumptive evidence. The leaned Advocate had an undoubted right to draw any reasonable inference from the facts, and I have an equal right to draw equally reasonable inferences favourable to Yates from the same facts. The learned Advocate referred to certain points to aid the judgement of the Jury, but fortunately for Yates not one of these points applied to the present case. Yates was not sober. He had not threatened Mansforth, nor was he shown to have lain in wait for Mansforth.

"Now comes the consideration of the temperament of Mansforth. The very fact that he left his family and retired to the comfortless life of a shepherd in a remote station, would prove that he was a man of bad temper. In addition to that it was shown that he was a bad hut-mate, and that there were no less than four hut-keepers employed by Mr Slater in the short space of nine months. If the Jury is to take the words of Yates against him, you are equally bound to take them in his favour, and believe him when he said he had a shuffle with the Sergeant, who drew his knife and cut Yates' thumb.

"If then a scuffle were admitted, and I do not think it can be denied, I call attention to a decision by Lord Tenterden in the King v. Lynch, 5 Carrington and Payne. I also refer to the direction of Chief Justice Tyndall in the case of George Hayward, 8 Carrington and Payne, both cases of stabbing, but in one, the crime was committed in the heat of passion, the other, after time had elapsed to allow passion to subside. In one case the accused was found guilty of manslaughter, and in the other very properly murder. I dwell on these cases because they placed in a strong point of view the proper law of the subject.

"I will call attention to a fact that will prove incontestably the importance of Yates hiring a counsel to watch over the evidence advanced against him - a fact that has, I firmly believe, escaped the notice of every other person in the Court. The two pieces of stick produced were of different timber - one a stick prepared evidently by a shepherd in idle moments, and the other a branch of sheoak evidently torn hastily from the tree - and in the paper of splinters produced, you will find fragments of each stick clearly proving, by such evidence as the Providence of God supplied to aid human judgement in such solemn investigations, that a struggle had taken place. If it was said by the counsel for the Crown that there was no proof that both sticks were not used by one person I will ask how came the knife of Mansforth to be open? How came my client's thumb to be cut? The sticks must have been used before the stone, as the surgeon informed you that death ensued immediately after the stone was used, therefore it was evident that there had been a fierce struggle, and sticks broken, that a knife had been drawn a wound inflicted, and there was blood on the inside of the hand of Mansforth, which was partly closed as if it had grasped the knife. The bruises also were given during life, both on the hands and the body, all proving that there was a fight which resulted in the death of one of the combatants, but there is no proof of malice aforethought.

"There is proof that a man was slain, but there is no proof of premeditated murder. Much of the mutilation which invests this case with such horror is to be traced to the dog, which is known to have devoured part of the face of the unfortunate Mansforth. But no amount of mutilation after death could add to the enormity of the offence of killing. No outrage to the dead body could alter the circumstances of the killing, which was simply homicide, into wilful murder. Barbarous as was the manner in which the throat was cut, it was quite a conceivable act on the part of a man excited by strife and intoxication, and maddened by pain.

"The probability that Yates was actuated by a desire to gain a few pounds which he thought Mansforth had in his possession. But there was an amount due to Yates, which he could not hope to receive after committing a murder, and the balance was so trifling as to render the supposition preposterous that any man would imperil his life in this world and his eternal salvation in the next for such a paltry amount. I will again refer you to the opinions of the learned Judges who I have read to you - opinions which are the acknowledged law of England. Guided by such directions, I believe you can not find Yates guilty of murder, while I admit it is your duty to convict him of manslaughter.

"As to the fact that the pocket was torn from the trousers of Mansforth, that might be accounted for on the presumption that it was torn by Yates to bind up his wounded thumb.

"Among the many points imported into that case, I will refer to the statement of the native witness, who remarked that he was restless all the night, yet it appeared she slept in a different room, and other men lay in the room with Yates who was restless. Then you can not but have observed the unwillingness of some of the witnesses to give a fair answer.

"Another point is extracted most unnecessarily from a policeman, that a conditional pardon was found on Yates; that could only have been done with a view to excite a prejudice against him as it being unfortunately the fact, and I will not say whether correctly or not, that a great prejudice was entertained by the people of this province against such men; but as it has been referred to, I will call on you to take it as a proof of long continued good conduct on the part of its holder, as under no other conditions could he obtain it."

Mr G.M. Stephen, the counsel for Yates, then in a most eloquent peroration, grouped his principal points. With a thrilling appeal to the justice and mercy of the Jury, he concluded an address which occupied an hour and a half in delivery.

Justice Crawford, in summing up, gave his final directions to the jury.

"The line of defence," said Justice Crawford, "adopted by the learned counsel for Yates simplified in some degree the important question for their decision. As the fact of homicide was not denied, the question for you was the intention of Yates when he deprived Mansforth of life."

Here Justice Crawford read the legal definition of the malice which the Jury must find influenced Yates before they could convict him of wilful murder.

"I will now comment on various portions of the evidence. I direct the attention of the Jury to the demeanour of Yates and particularly to his ferocious declaration that 'he would take damned good care that those who could say anything should say nothing.'

"Any natural inference is drawn by the counsel for Yates from the circumstance of there being fragments of two sorts of sticks found near the body that a struggle had taken place. It is, I will admit, very natural that a deadly struggle would be maintained by a person seeking to save his life. But then I certainly understood the witnesses to say that blood and hair were on each stick; it so...."

"I beg your Honour's pardon," interrupted Stephen, "there was blood on both sticks, hair on one only."

"I call the attention of the Jury," Justice Crawford carried on, "to the fact that Yates had thrown his glass of rum into Mansforth's beer. It was indeed said by the witness to have been done good naturedly, but it is for the Jury to consider what his motive could be.

"Then again, his way was to the head-station, whereas, when he left the public-house, he went in a different direction; it would be for them to account, if they could, for his change of mind.

"Then it appeared that Mansforth put the change he received at the public-house into his pocket, and not into his pocket-book. That same pocket was afterwards found torn from his trousers; you will consider whether Yates observed him place the money there.

"Yates told the people in the public-house that he had himself cut his thumb; and again he said, 'The old fellow had cut his thumb.'"

After a minute recapitulation of every point, Justice Crawford concluded with the direction that, if the Jury believed the killing was intentional and without and without justifiable cause, they would find Yates guilty of murder.

"Will not your Honour instruct the Jury that a killing in the heat of blood is manslaughter?" asked Mr Stephen.

"I have directed the Jury in the words of Mr Justice Littledale in the King v. Harvey, 10 Barnewall and Cresswell," replied Justice Crawford.

"I beg to hand your Honour much later authorities," pleaded Stephen.

Stephen approached the bench and gave Justice Crawford the relevant references. Justice Crawford perused them.

"I regret," said Justice Crawford to Stephen, "I can not modify my direction to the Jury."

At the direction of Justice Crawford, the Jury retired at half-past nine o'clock. They returned in ten minutes with a verdict of Wilful Murder.

"I move an arrest of judgement, your Honour," called Stephen, "on the grounds of misdirection. I repeat your Honour's words, 'That if the killing was intentional, and not justified. It was murder.'"

"Such was my direction," agreed Justice Crawford.

"Will your Honour defer sentence until I move the Court on that point?" asked Stephen.

"I can not do so" replied Justice Crawford.

"May I look at the indictment?" requested Stephen. He paused for a moment. "No, I will not move the Court."

Stephen sat down at the bar. The police guard standing next to Yates prompted him to stand up and face the Judge. A few uncomfortable moments passed.

"James Yates," asked Justice Crawford looking intently at Yates, "do you have anything to say why sentence of death should not be passed on you."

"I never intended to kill the man," declared Yates in a wavering voice. In dejection, he slowly added more in an attempt to bolster his own position; "I was always on friendly terms with him."

The court went silent again. Justice Crawford put a black hat upon his white, horse-hair wig. He adjusted his red robes and stared at Yates.

"James Yates," said Justice Crawford in a slow and solemn tone, the effect of which was the more painfully impressive from being imperfectly heard, "it has now become my painful duty to pass the sentence which the law proclaims shall be inflicted on all against whom the verdict of wilful murder is returned.

"I confess I cannot dissent from the justice of the verdict notwithstanding the able and ingenious defence made for you by your counsel. You have been ably defended, and the evidence being patiently heard. It was quite true you have been on terms of friendship with your victim, but that fact only tended to show the desperate depravity of your heart who could send with all his sins upon his head the man before his Maker whom you had been living with in terms of friendship. I earnestly beseech you to make good use of the time allotted you in this world.

"The sentence of the Court is that you be taken from the place where you now stand to the place of confinement, and thence on Tuesday, the 5th day of September, to the place of execution, and there hanged by the neck until you are dead, after which your body shall be buried in the precincts of the gaol, and may the Lord have mercy on your soul."

Yates heard his sentence unmoved, and maintained a considerable firmness of manner, but the workings of his face proclaimed the bitterness of the agony within him.

The Court was adjourned until ten o'clock the next morning.

Postscript - Yates was hanged at Adelaide Gaol on 5 September 1850 with his body being buried in the prison grounds. By a curious coincidence, both Judge Crawford and the Advocate General followed Yates to the grave prematurely in 1852, just a little over two years following the death of Yates. Some have speculated that this is the coming to fruition of the curse Yates is supposed to have placed upon these two men who forced him to an early grave.

During the arraignment hearing, for the first and last time in her life, the actual thoughts of Kudnarto are given voice and published as a verbatim report. When she was called to give evidence, at first she was treated with little dignity. Her comments reflect this when she gave her background.

"Mary Ann Adams, a Christian aboriginal native, married to Thomas Adams, stated that she had been in the native school but did not often say her prayers."

These questions were not asked of any other witness. However, despite the implied racism, she continued to give her evidence with dignity.

On the first question by the magistrate, Kudnarto misunderstood the answer required. She was asked about the body and the prisoner. In answer she said that she had seen them both. At this point, her husband asked for the court's indulgence to assist in properly explaining the questions to Kudnarto. This was allowed and she followed his direction. In her own words, she replied:

"No, no, me no see 'em dat man in the bush near dead man."

In an attempt to humour her, The South Australian Register of 5 August 1850 goes on to say that:

"The horrors of remorse were powerfully described in the simple language of the child of the forest."

Such a saccharine and condescending sentiment is insulting to a mature woman who was far from a 'child of the forest' but better described as a bucolic battler.

However, despite well meaning whimsical statements, The South Australian Register spoke kindly about Kudnarto. Her appearance was favourably commented upon. So too did they marvel that a Christian Aboriginal woman was able to give testimony in good English. The uniqueness of this situation aroused interests for there were singular rules dealing with Aboriginal evidence and its acceptance in a court of law. Aborigines were not taken seriously in court. Because the Magistrate could not ascertain whether she was a Christian woman, he refused to take her testimony under oath.

Her stature had not altered even though enduring the hardships associated with farming. The South Australian Register described Kudnarto as being:

"Neatly dressed in the costume of white women of her class, her hair hanging about her head in rich profusion, she certainly appeared to considerable advantage ..."

During the trial held on Monday, 19 August 1850 at the Supreme Court the only point of note in relation to Kudnarto is the presumptive attitude of the Judge when he said that he had;

"... recently examined this woman as to her religious knowledge, and come to the conclusion that she was not fit to be put on oath. He directed her to speak the truth, which she promised to do."

This is very reflective of the editorial contained in The South Australian Register a few years prior to this trial during the debate over the Aboriginal Evidence Act of 1844 when Adelaide people already widely knew that Aborigines were thieves and liars. Also Aborigines proved incapable of understanding the simple truths of British Justice and Christianity. In reality, as concluded later by the then Chief of Police, Major Warburton, the beauty of British Law was wasted upon those who couldn't understand its principles.

For Yates, it was a short and brutal end to a man who received little sympathy from the community. With the end of Yates' life, the lives of the good people at Skillogolee Creek returned to normal.

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Section 346
Skillogolee Creek
The house that Thomas Adams built
Skillogolee Creek
The first letter of Thomas Adams from
Skillogolee Creek