Introduction

This paper is concerned with the jurisdiction of the British colonial criminal law over Indigenous Australians, particularly in the area of serious offences such as murder and rape. In particular, the paper examines the attempted use in the 1860 case of Regina v Peter of the legal demurrer that the accused Aboriginal man was not subject to the jurisdiction of the court because he was not born a British subject and had never entered into allegiance to the British Queen. The paper also discusses some of the difficulties which the legal authorities found in dealing with this issue, even as late as 1860. The issue of the amenability to British law was a significant one in the early colonial period; it then largely disappeared from serious public consideration but has resurfaced since the 1980s in the context of land rights, native title, and the status of Aboriginal customary law.

Regina v Peter (henceforth R v Peter) has been known and referenced by historians with an interest in the issue of the jurisdiction of British law over Victorian Aboriginal people. The most detailed study has been by Simon Cooke, who provides a thorough examination of the origins, arguments, and outcomes of R v Peter and considers the implications of the arguments of counsel.¹ This paper complements Cooke's study by considering matters such as Mungett's apparent knowledge of legal procedures and attempts to provide greater understanding of the cultural milieu within which he lived. It is hypothesised that Mungett's source of legal knowledge most probably came from local squatter Charles Griffith, an Irish trained barrister, who had been associated with Mungett's family and clan since 1841. The paper also examines the question of whether or not Wathawurrung traditional systems had survived sufficiently by 1860 to warrant Peter's claim that he should be tried by his own people rather than the colonial courts.

Peter, whose Aboriginal name was Mungett, was brought before the criminal sessions in Melbourne in February 1860 on a charge of rape of a child.² Mungett was a member of the Marpeang baluk clan whose lands extended over the Ballan and Bacchus Marsh areas (50–80 km west of Melbourne) of the Wathawurrung language group.³ Mungett was found guilty on 20 February 1860 and the sentence of death was passed upon him. Execution, however, was deferred until after the argument before the full court on the special plea put in by Dr Mackay on his behalf.⁴ Barry Bridges has discussed the prevalence of inter-racial sexual crimes in colonial New South Wales. The first execution of an Aboriginal man in Australia was that of Moowattin in 1812 for the rape of a white woman; Mickey Mickey was executed and Charley Myrtle was transported to Van Diemen's Land for life in 1835; and Paddy was executed in 1854. In cases of attempted rape, offenders commonly received two years' hard labour.⁵

Mungett refused to plea before the Melbourne Criminal Court on the grounds of his not being a British subject, and the case was subsequently heard by the Supreme Court of Victoria during June of 1860. Mungett was defended by Melbourne barrister Dr George Mackay, who was known at the Bar as 'the old Doctor' and had a reputation for being 'an unrivalled "chamber" lawyer' for the learned opinions he gave.⁶ Mackay put in a plea to the effect that the court had no jurisdiction over Mungett as 'he was born out of the allegiance of the Queen, and belonged to a sovereign and independent tribe residing in the district of Ballan which had courts of their own, and to which alone he was answerable.'⁷ In other words, 'Peter asserted that he lived under an existing Aboriginal sovereignty that he had never given up, and by which sovereignty he could be tried for the crime of which he was accused'.⁸ The legal 'demurrer' was ultimately unsuccessful and despite Mungett's plea of not guilty, he was convicted and sentenced to death, though this was later commuted to fifteen years imprisonment.

The assault which led to this conviction took place on 30 December 1859 near the Pentland Hotel, Bacchus Marsh. Arrested that evening he was confined in the Bacchus Marsh lock-up until 17 January 1860 when was then transferred to Pentridge. A statement of evidence from the victim's father Peter Garland was taken before justice of the peace Mordaunt Maclean in Bacchus Marsh on 31 December 1859. Other statements were taken from Isabella Garland (the victim), her mother Isabella Garland, Margaret Downey (a neighbour), Dr John Pearce Lane (a surgeon who examined the child), and Samuel Spencer Hanger (the landlord of the Pentland Hotel) on 12 January 1860 before justice of the peace Charles Shuter in Bacchus Marsh. Guardian of Aborigines William Thomas took Mungett's statement on 24 January 1860.

Mungett’s life: a reconstruction

Some reconstruction of Mungett's life is possible through public records, newspapers and squatters' journals. According to a statement made to William Thomas, in 1860 Mungett went by two names and identified with the Wathawurrung people of the Ballan district. As recorded in Thomas's papers, he stated: 'My name Peter – white man call me that – the Ballan Blacks: Mun-gett'.⁹ From his entry in the Victorian prison register we learn that Mungett was born circa 1831.¹⁰ He was possibly one of a group of seven Wathawurrung clanspeople seen in March 1840 at Bacchus's station on the Werribee River by Edward Stone Parker, assistant protector of the Port Phillip Aboriginal Protectorate for the Loddon District.¹¹ Among the group was Oondiat (Peter's father) who is listed in a census taken by Parker in August 1841.¹² Oondiat's father, Oondiat the senior, also known as Jack Mungit or 'Captain', is listed in several squatters' diaries as being a 'big man', clan-head or elder.¹³ Bacchus Marsh squatter Charles Griffith, considered Jack Mungit to be 'the most civilized of them [his clan]' and allowed only Jack Mungit and his family to remain on Glenmore station.¹⁴ In Emma von Stieglitz's sketch book spanning from 1839 to 1860 there is a sketch dated November 1852 titled 'Poor Mungit's grave Ballan'.¹⁵ We believe this is Jack Mungit's grave.

Further corroboration that Mungett's country was the Bacchus Marsh region may be inferred from an inquest held into the death of Jimmy/Jemmy or James Mungett in April 1859, who is listed as being of the 'Bacchus Marsh tribe of Aborigines'.¹⁶ The relationship between James Mungett and Peter Mungett is unclear, but it is presumed that they were siblings. The second piece of corroboration is the many visits his Bacchus Marsh clanspeople (Marpeang baluk clan) paid him when he was incarcerated in Pentridge prison. Thomas noted three occasions in January and February 1860 when he saw 'three Bacchus Marsh blacks, permit[ed] one to visit black in gaol'.¹⁷

Of the Marpeang baluk, Mungett's local group, we know that in 1840 Bacchus's men at Bacchus Marsh spoke well of them. John Gray on the upper Werribee River described them as 'a quiet tribe that assisted the settlers'.¹⁸ By 1858 there were about 29 adults and 12 children at Bacchus Marsh who police magistrate Charles Shuter described as being 'in good health'. In 1857 a small supply of blankets, rugs, flour, tea, sugar, and tobacco was obtained from the government at the request of local resident Mrs Macleod and distributed by the clerk of the bench. Shuter noted that their principal means of living was through begging, although they only visited Bacchus Marsh once a year and were employed occasionally by settlers.

In 1860, Mordaunt Maclean and James Young were appointed local guardians by the Central Board for the Protection of Aborigines and a depot for the distribution of government rations was established at Bacchus Marsh. In the board's first report of 1861, Maclean noted that the Aboriginal people in the neighbourhood of Bacchus Marsh spent much of their time 'wandering about, generally in the vicinity of public houses. They occasionally sold a few fish, or wild fowl, and often performed corrobberys for the amusement of white spectators, after which one of the party carried a hat round to receive contributions, and [Maclean] believed almost every penny they collected was expended on intoxicating liquors'.¹⁹

A valuable source of information about Peter Mungett are records relating to his criminal convictions held by Public Record Office Victoria. The first prison register entry records that Mungett had two prior convictions in July 1856 and August 1857 for larceny and damaging property (for which he was discharged in April 1858). A later entry contains information relating to the rape conviction which is the basis of this study.²⁰ In his response to a circular question of the 1858-59 Legislative Council Select Committee on the Aborigines, Charles Shuter referred to Mungett's earlier crimes, stating that he had 'been in this district three years, and the only instance of stealing I remember was by a very intelligent aboriginal, who spoke English fluently; he was convicted and imprisoned for petty larceny twice within the year. I think that he learned this habit from the Europeans. I do not think it was his nature to steal'.²¹ Mungett's prison record gives his age in 1856 as 25, his native place as Melbourne, and states his connection to the 'Port Phillip tribe'.²² This connection is corroborated in Thomas's weekly reports during 1860, among which there is a note that mentions he knew Mungett from 'his frequenting Melbourne years back'.²³ Thomas added that he had given 'him advice but fear that he is a bad one' and also noted that Mungett 'had been a bullock driver at good wages'.²⁴ In Mungett's later prison register entry his religion is listed as Protestant (which again is corroborated by Thomas's journal which notes that Mungett was attending Protestant services whilst in Pentridge), and also records that he was illiterate, a claim that requires further scrutiny.²⁵ In terms of distinctive physical features, it is noted that he had 'scars left shoulder left arm, right shoulder, left hip', and that he was a 'very hairy man'. It is possible these scars were cicatrices, or ceremonial scarring commonly resulting from initiation ceremonies practiced by many Victorian Aboriginal people in the nineteenth century. The earlier entry in the prisoner register records that Mungett had 'been a stock driver for Mr McLeod of Bacchus Marsh',²⁶ presumably a reference to Hector Macleod of Goodmans Creek with whom James Mungett was also associated.²⁷