R v Bonjon was a criminal court case, decided in the Supreme Court of New South Wales for the District of Port Phillip on 16 September 1841, in which Bonjon, an Aboriginal man, had been charged with murder for killing Yammowing, another Aboriginal man. The main issue in the case was whether the colonial courts had jurisdiction over offences committed by Aboriginal people inter se, that is, by one Aboriginal person against another.R v Bonjon NSWSupC 92, Supreme Court of NSW (District of Port Phillip).
Judge Willis extensively considered the legal situation as to the British acquisition of sovereignty over Australia, and its consequences for the Aboriginal people. Though not finally deciding the question, he indicated that he strongly doubted that he had jurisdiction. The trial of Bonjon was allowed to proceed without prejudice as to the question of jurisdiction, but the prosecution ultimately abandoned the case and Bonjon was eventually discharged.
The case, long forgotten after it was decided, has more recently been recognised for the significance of its reasoning; several commentators have compared it to the famous 1992 Mabo case, though "reached 150 years earlier by an irascible judge in the bush town of Melbourne."
Background to the case
The defendant Bonjon (or, alternately, "Bon Jon") was an Aboriginal man of the Wathaurong people.Reports of the case give the name of Bonjon's people as "Wadora", an alternative spelling of an alternate name for the Wathaurong. See According to the Wesleyan missionary Francis Tuckfield, one of the witnesses in the case, Bonjon had been in contact with Europeans more than any other member of the Wathaurong, having even been a volunteer member of the Native Police for some time. According to police magistrate Foster Fyans, Bonjon was with the Native Police for seven months, tracking runaway horses and generally assisting the other members.
The victim Yammowing was of the Gulidjan people, whose territory bordered that of the Wathaurong.Reports of the case give the name of Yammowing's people as "Colijon", an alternative name for the Gulidjan. Tuckfield knew Yammowing well, as he had lived among the Gulidjan from time to time while working at the Buntingdale mission station near Birregurra.
The prosecution alleged that on or about 14 July 1841, Bonjon shot Yammowing in the head with a carbine at Geelong, killing him. At the time, the area was part of the Port Phillip District within the colony of New South Wales, and so the case fell within the jurisdiction of the Supreme Court of New South Wales for the District of Port Phillip. The case was heard before Judge Willis, the Resident Judge, in Melbourne on 16 September 1841.
Arguments
Bonjon was represented by Redmond Barry, and the Crown Prosecutor James Croke appeared for the prosecution.
Capacity of Bonjon
There were two issues as to the capacity of Bonjon for the jury to consider: firstly, whether Bonjon had the capacity to enter a plea to the jurisdiction; and secondly, whether Bonjon had the capacity to enter a plea to the general issue, that is, a plea of guilty or not guilty.
A number of witnesses were called as to the question of capacity. Barry initially called George Augustus Robinson, then the Chief Protector of Aborigines in the Port Phillip District, who testified that he was "acquainted with the customs of the natives", but had no "intimate knowledge" of Bonjon personally; he informed the court that Francis Tuckfield had been responsible for Bonjon's people.
Tuckfield was the next witness called, and he testified that Bonjon "entertains some ideas of a Supreme Being", but that his ideas were "very imperfect and indistinct notions, not sufficient for him to understand the nature and obligations of an oath." Justice Willis explained to Tuckfield the nature of a plea to the jurisdiction, after which Tuckfield added that he did not think Bonjon could enter such a plea, although he was satisfied Bonjon could plead guilty or not guilty. On cross-examination by Croke, Tuckfield testified that "[m]urder is considered a crime amongst the Aboriginals, but under all circumstances I do not think they would consider it as such, there are some exceptions."
The final witness was Fyans, who outlined Bonjon's service with the Native Police, and added that he considered Bonjon "particularly sharp and intelligent in his own way", though he could not speak English very well.
After this, Judge Willis put the question to the jury, who unanimously decided that Bonjon did not have the capacity to enter a plea to the jurisdiction. At Judge Willis' suggestion, and with the agreement of the parties, the question as to the general plea was put to the jury without recalling the witnesses: the jury decided that Bonjon had capacity to know whether he did or did not kill Yammowing, but not to plead guilty or not guilty, "as murder is not always considered a crime with the Aborigines".
Judge Willis however considered that Bonjon "is not so totally wanting intellect as not to say guilty or not guilty", and thus decided that the case could proceed to the question of jurisdiction.
Plea to the jurisdiction
The main arguments in the case were as to whether the court had jurisdiction over Bonjon.
Defence
Barry opened his argument by acknowledging the significance and novelty of the case, adding that he was "also impressed with the assurance of its being highly interesting as well to those resident in this district as to the inhabitants of the neighbouring colonies." Barry also referred to a report recently made by George Grey, the recently appointed Governor of South Australia, to the Colonial Secretary concerning his views on the Aboriginal people of South Australia, in which Grey advocated that "the aboriginal natives should be tried by British law as now dispensed with respect to the European subjects of Her Majesty resident in the colony, and visited with punishment for offences committed by the natives amongst themselves". Barry used this, along with the Colonial Secretary's reply (although he was unable to obtain a copy of for the court), to introduce his proposition that the ability under the current law to try Aboriginal persons for crimes committed against other Aboriginal persons either "[did] not exist, or... is so debatable a matter, so much of a 'vexata questio,' as to call for some declaratory expression on the part of Her Majesty's government."
Barry refined the proposition in this way: "That there is nothing in the establishment of British sovereignty in this country which authorizes our submitting the aboriginal natives to punishment for acts of aggression committed 'inter se.'"
Much of Barry's argument related to concepts at international law on the acquisition of sovereignty. Barry referred to the methods of acquisition recognised under English law, as laid out in Blackstone's Commentaries on the Laws of England, where Blackstone describes the doctrine of reception:
Barry also noted the 1774 case of Campbell v Hall, in which one issue was the British acquisition of sovereignty over Grenada, where those same principles had been explored by Lord Mansfield. Grenada had been ceded to the English by the French under the 1763 Treaty of Paris, and so Lord Mansfield's principles dealt with conquest and cession; Barry however argued that the asserted basis for British sovereignty in Australia was not either of these methods, but rather "occupancy alone".
In order to explain the position in international law relating to acquisition by settlement, Barry turned to Vattel's The Law of Nations, quoting two long passages, in which Vattel posited that:
Barry, though not challenging this principle, said that nothing in it meant that the laws and customs of the indigenous peoples of any territory so settled were necessarily negated. Indeed, Barry argued that the "mere act of occupancy that gives to the crown a right to the soil, can confer no authority whatsoever over the aboriginal inhabitants as subjects, unless there be some treaty or compact, or public demonstration of some kind on the part of the natives, by which they testify their desire to come beneath the yoke of the law"; he argued that the Aboriginal peoples of Australia had made no such treaty, nor any such demonstration.
Barry acknowledged the introduction of the Native Police, and the institution of the Port Phillip Protectorate, but said that in reality those measures were intended more for the protection of white settlers than for the Aboriginal people. Barry also raised the example of laws which prohibited the sale or supply of alcohol to Aboriginal people, but which did not introduce any penalty for Aboriginal people possessing alcohol, and similar laws relating to firearms. As a final point on that line of argument, Barry referred to the writings of James Kent on the corresponding position under American law with respect to Native Americans.Reports of the case did not indicate which of Kent's writings Barry quoted.
Barry then attempted to anticipate some of the counter-arguments that might be made. To the argument that someone denying the jurisdiction of a court must also indicate some jurisdiction that is competent, Barry said that the customary legal system of the Aboriginal people themselves was the correct jurisdiction. Barry indicated he was prepared to call witnesses to testify on the methods within the Aboriginal legal system of dealing with such matters, and also argued that although there were certainly differences between the Aboriginal and English legal systems, that did not mean that the former was not a valid jurisdiction.
To the argument that it would be anomalous to recognise two different jurisdictions within the one country, Barry referred to the case of Mostyn v Fabrigas. In that case, a native Minorquin had successfully sued the British governor John Mostyn after Mostyn exiled him from the island; Barry relied on it for the fact that both Spanish law and English law were accepted to coexist together on the island. Barry further argued that parts of the Brehon law of Ireland existed in parallel with the English law for several centuries after the Norman invasion of Ireland, that French law continued to be applied in French-speaking Canada, and Dutch law in the Cape Colony, and even reminded Judge Willis that "your honor dispensed the Danish civil law for several years in British Guiana."
Barry concluded his argument by saying to the prosecutor Croke that he "will not, though he were to erect on every hill throughout the district a gallows as lofty as that on which Haman expiated his guilt, reduce these people to the condition of willing, consenting, and convinced dependants on the British crown."
Prosecution
Croke, in reply, began with the proposition that:
Croke argued – like Barry basing his argument on Vattel's The Law of Nations – that international law validated such acquisition of sovereignty over "uncivilised" peoples, providing that adequate territory were left to them for their sustenance, and said that that was certainly the case in the Australian colonies.
Croke argued that it was the location of the crime, and not the nationalities of the people involved, which determined the jurisdiction, and that anyone present in an English territory "owes a local allegiance to the Queen of England, receiving protection at her Majesty's hands whilst within the district, and consequently reciprocally bound by the laws that prevail within that district". Croke posed as a rhetorical question whether, supposing Bonjon had instead killed Yammowing in England, or similarly, supposing one Frenchman had killed another Frenchman in England, "my learned friend [could] deny that the slayer would be amenable to the law of England?"