Giving evidence in court 1788-1876
Until 1876, a person had to take a religious oath to give evidence in a NSW court. Aboriginal people were not considered able to take a religious oath and therefore could not give evidence. This had serious implications for criminal cases and upholding justice, particularly where Aboriginal people were killed, and people were not held accountable for those murders by the court.
Soon after first contact, some Europeans were tried for acts of violence against Aboriginal victims. For example, in 1799 a non-Aboriginal man was charged with the alleged murder of an Aboriginal man, Willie Cuthie. Cuthie’s wife, also Aboriginal, wanted to give evidence related to the alleged murder, but her evidence was not allowed into court because she was deemed, ‘incapacitated from giving such testimony as could be admissible in law’ (). The judgment didn't explain why. The non-Aboriginal man was acquitted of murder.
In 1805, Judge Advocate Richard Atkins expressed an opinion on Aboriginal people giving evidence in court that ‘the evidence of persons not bound by any moral or religious [t]ye can never be considered or construed as legal evidence’ (). This opinion was never adopted by a Governor ().
In the trials of R v Luttrell, (1810) and R v Hawker (1822), where settlers were tried for acts of violence against Aboriginal victims, no Aboriginal witness gave evidence in the proceeding ().
After the NSW Supreme Court was established in 1824 (), Aboriginal people continued to be excluded from giving evidence by NSW courts because they were not allowed to take a religious oath (). This caused concern amongst colonial administrators as early as 1824, with the Attorney-General calling it a ‘denial of justice’ ().
The Governor at the time described it as ‘one of the greatest practical absurdities ever committed by the Courts’ (). Attempts were made by Parliament to allow Aboriginal people to give evidence in court. However, the Australian Law Reform Commission explains that these were either subject to defeat by hostile legislatures or disallowed by British officers for being contrary to the principles of British jurisprudence ().
For example, after the Myall Creek Massacre which involved the alleged murders of at least 28 Aboriginal people in 1838 (), the Aboriginal Native Witnesses Bill (Act No XVI) 1839 () was introduced into Parliament.
The bill would have allowed Aboriginal people to give evidence in court by making an affirmation or declaration that they would tell the truth and nothing but the truth and was described by the Attorney-General at the time as ‘the greatest departure from the rules of English evidence ever attempted’ ().
The bill was passed by the NSW Parliament but a clause was inserted to suspend the law until it was approved by 'her Majesty' ().
In practice, approval by ‘her Majesty’ occurred by recommendation of the Colonial Office and ultimately the Act was disallowed (). The reasoning given was that ‘to admit, in a criminal case, the evidence of a witness acknowledged to be ignorant of the existence of a God, or a future state, would be contrary to the principles of British jurisprudence’ ().
In 1842, the Chief Protector of the Aborigines argued: ‘There is ... reason to fear that the destruction of the aboriginal natives has been accelerated from the known fact of their being incapacitated to give evidence in our courts of law’ ().
In 1843, The (Colonies) Evidence Act 1843 (Imp) () was passed by the UK Parliament. The law permitted colonies, including NSW, to allow witnesses, including Aboriginal people, to testify in court without taking a religious oath. The law described Aboriginal people as being ‘destitute of the knowledge of God’ and ‘incapable of giving evidence on oath’.
After this, NSW Parliament attempted to pass the Aboriginal Evidence Bill 1844 (NSW) (). It would have allowed Aboriginal people to give evidence in court without taking a religious oath. However, it was rejected by NSW Parliament and did not become law ().
In 1847, at least 23 Aboriginal people were allegedly poisoned to death at Kangaroo Creek NSW, but the case against the accused non-Aboriginal man did not proceed. The Attorney General at the time stated, ‘This is one of the many cases from which the defect of the present law, in excluding altogether the evidence of the Aboriginal natives is apparent’ ().
In 1849, another attempt was made to allow Aboriginal people to give evidence without taking an oath (). During the debate of the bill, the Attorney General referenced the Kangaroo Creek poisoning and stated, ‘All the natives agreed to the same story … it was the legal evidence only that was wanting, and for want of this the parties whose guilt was well known, escaped the hand of justice’. He also stated, ‘justice was entirely evaded because native testimony could not be admitted’ (). However, the bill was defeated by one vote and did not become law.
It was not until 1876 that the law changed so any person deemed ‘incompetent’ to take an oath or who reasonably objected to taking an oath, could give evidence.
The Evidence Act 1876 (NSW) () allowed any person to make the following promise ‘in the case in which I am now called as a witness I promise to tell the truth the whole truth and nothing but the truth’. This law applied equally to Aboriginal and non-Aboriginal people, meaning Aboriginal people from 1876 onwards could give evidence in court without having to take a religious oath.
Soon after these laws were passed, ‘Aboriginal trackers’ who worked for the NSW police were ‘perhaps more than other members of the Indigenous community … called upon to take the stand’ (). For example, in 1894 a tracker supported police evidence in court (). In the early 20th century trackers also gave evidence for offences such as unlicenced gaming (), stealing () and murders ().
On occasion though, judges continued to rule Aboriginal evidence inadmissible on the grounds of their inability to take an oath (). The Oaths Act 1900 (NSW) () which is still in force today () allows people to make a solemn declaration rather than take an oath.