The success of this system of official scrutiny and legal intervention as a means for protecting Aboriginal lives depended on the success of prosecution and sentencing as a deterrent to future frontier violence. However, the system was not without its faults. The Border Police repeatedly failed to take depositions following collisions, and were later upbraided for their laxity.³⁴ In the Jim Crow case, the act of a magistrate both ordering an arrest and interviewing those involved in the subsequent deaths demonstrates a conflict between the unseparated frontier powers of police and judiciary. JA Cameron, in his letter to La Trobe accompanying the statements, even went so far as to opine that the police were 'obliged in self-defence to shoot two of the Natives'. Significantly, Aboriginal witnesses could not supply statements under oath, so their version of events was excluded from the depositions and the legal process. Instead, representation of Aboriginal legal interests was dependent on sympathetic European intermediaries such as the Protectors of Aborigines. Indeed, the existence and function of the Protectors acknowledged implicitly that the theoretical equality of Aboriginal subjects was not matched by the realities of practice.

After eight months, word of the shooting became public in Melbourne. Press reaction revealed staunch support for settlers on the frontier, hostility to the Aboriginal inhabitants and an assumption of innocence or justification on the part of the police. The Indigenous people of the Wimmera were regarded as 'excessively troublesome customers' and when police were sent in 'encounters naturally followed'.³⁵ The Protectors received particular criticism for representing Aboriginal interests.

It is certainly very singular how indefatigable the Protectors generally are in cases against the natives, and how negligent and fair and easy they show themselves when a Koort Kirrup or any other sable murderer happens to be arraigned before a British tribunal.³⁶

The 'sable murderer' Koort Kirrup, who denied the allegation that he had killed two Western District settlers, was presumed guilty before he was tried.³⁷ Policemen who shot dead two Aboriginal men were afforded a greater presumption of innocence.

The policemen appeared before the Supreme Court in Melbourne on Wednesday 20 August 1845 - Sparrow, who fired the fatal shot, on a charge of murdering Jim Crow, Daplin and Bushe for 'counselling, aiding, assisting and abetting' in the alleged murder. The main issues considered were the legality of police actions when executing an invalid warrant and whether the threat posed by Jim Crow justified shooting him in self-defence.

In determining this the court relied overwhelmingly on the testimony of Daniel Cameron, whose initial claims of Jim Crow's depredations had been cast into doubt, who had been central to instigating the police pursuit and who had participated in the hunt and fatal stand-off. He was far from an impartial witness. The only other witness called was magistrate JA Cameron, who gave evidence about his issuing of the warrant. The law forbade sworn evidence from Aboriginal witnesses such as Jacky Jacky, one of those in the camp where 'the spears flew in all directions' and where the man named Charlie was killed. After the camp skirmish, Daniel Cameron had induced Jacky Jacky to help the police party find Jim Crow and, according to Cameron's evidence, 'the guide' was present during the fatal stand-off.³⁸ Yet Jacky Jacky, a witness to both shootings, gave neither deposition nor courtroom testimony. He might have confirmed or contested Cameron's account and elaborated on his euphemistic three-word courtroom description of the fatal scrub skirmish - 'the camp dispersed'.³⁹

Other courtroom discussion considered the place of the Indigenous population as theoretically equal subjects under Anglo-Australian law. In his opening address to the jury, prosecutor James Croke said 'the aboriginals were as much entitled to protection as any other portion of her Majesty's subjects, and that the homicide of an aboriginal must be prosecuted the same as the homicide of any other person'. However, Judge Therry noted:

In the application of the British law to the aborigines, there was a great difficulty ... in consequence of the discrepancies in the habits and manners of the savage man compared with those in civilized life. Although they were entitled to the same law as ourselves they were not to be encouraged by any false notions, or by any undue regard or facility, any more than ourselves, and if one of the jury had been placed in the position of the black, and under the circumstances if the policemen were justified in shooting him, they were equally justified in shooting the black.

Therry's argument of a situation analogous with a white suspect sought by police assumes an equal understanding of the workings of colonial law and of the legal processes following surrender. However, the standing counsel for the Aborigines, Redmond Barry, argued that the troopers had not told Jim Crow what they required of him. Nonetheless, the judge's opinion to the jury was that 'as much notice had been given to a person of that kind as could be given', and that if the police had not given actual notification 'there was at least an implied notification, and that was sufficient'.