Eureka - The Unfinished Revolution (79 page)

Step forward, John Joseph, the man characterised in the press variously as ‘the nigger-rebel’ and the ‘nigger martyr’.

And so the black American does, even if the wheels of justice continue to move only very slowly from there. The Crown objects to all potential Irish jurors, all publicans and all others of dubious character, while to the amusement of the gallery – the nigger speaks! – John Joseph himself desires to have neither merchants nor gentlemen sitting in judgement upon him and says so. His drawling voice is rich as molasses, resonant and thickly accented.

Nevertheless, after no fewer than 30 prospective jurors are rejected by Joseph, assisted by his Lead Counsel, the former Colonial Secretary of Van Diemen’s Land, Henry Chapman – who had been dismissed from that post because of his opposition to transportation – and his Junior Counsel, Butler Cole Aspinall, the two sides have finally agreed on 12 good men and true.

As all the legal manoeuvres have taken the better part of a day, the court is adjourned until the following morning, at which point the Attorney-General is not long in making what he considers to be an extremely strong case against the American.

There is no doubt that John Joseph was with the rebels from the start – he was there when they raised their flag and built their Stockade.

‘They met under that flag,’ Stawell says in his clipped tones, ‘and patrolled together. Many of them were armed; indeed most of them were armed; and they all appeared to be marshalled, and they selected certain officers . . .

‘Under this flag all those who really wished to volunteer, as it was termed, for this service, undertaking, as they called it, to fight for their rights and liberties, came forward, took their hats off, and knelt down and swore to defend each other, kneeling under this flag . . .’

And this, of course, was only the beginning of the treasonous acts subsequently committed when those same rebels fired on Her Majesty’s soldiers! As many witnesses will attest, John Joseph was in the Stockade in the days leading up to the battle, attended all the meetings and participated in all the drills, carrying a double-barrelled gun. And as it happens, members of the jury, we have the
very gun
that Joseph was subsequently seen firing at Captain Henry Wise of the 40th Regiment, giving that brave officer in Her Majesty’s service a wound from which he subsequently tragically died.

For his first witness for the prosecution, William Stawell calls none other than Police Trooper Henry Goodenough, who, disguised in plain clothes, was inside the Stockade in the days leading up to the event. Strangely, however, the trooper’s evidence is only of the most general variety, detailing the Stockade building and the drilling conducted therein, without actually positively identifying the defendant as being a part of it.

At least the next witness for the prosecution, Goodenough’s fellow spy Andrew Peters, is able to give testimony that Joseph was in the Stockade on the early morning of 3 December, but, once again, could you trust the word of a spy? Joseph’s counsel thinks not.

Peeved at this line of attack, the Attorney-General is at least able to bring forward several Redcoats who also testify to Joseph’s presence in the Stockade
and
that he shot at Captain Wise.

‘The soldiers were so impressed with the conviction that this man shot their officer,’ Stawell says, ‘that a desperate rush was made at the Stockade, and he was afterwards seen to go into a large tent in the Stockade known as “the guard tent”.’

Let us begin with Private Patrick Lynott, of the 40th Regiment. ‘Do you swear to tell the truth, the whole truth and nothing but the truth, so help you God?’

‘I do.’

‘You are, I believe in the 40th Regiment?’ the Attorney-General begins.

‘Yes . . .’

‘Did you go out on the morning of Sunday the 3rd December?’

‘I did.’

‘About what hour?’

‘Between three and four o’clock.’

‘How many went out?’

‘I think between the 12th and 40th we amounted to 164 . . .’

Private Lynott then describes approaching the Stockade and being fired upon first.

‘What distance were you from the Stockade when the volley was fired at you?’ the Attorney-General asks.

‘We might be about 300 yards . . .’

‘When you got to the Stockade, did you go inside?’

‘Yes.’

‘Did you see anybody inside that you recognise?

‘Yes, I saw the prisoner . . . He had a double-barreled gun, and he raised it and fired immediately . . . He discharged it, and in the direction in which he fired I saw Captain Wise lying wounded.’

At this point Henry Chapman objects strenuously: ‘I would submit to your Honour that this is merely a matter of aggravation because in a melee of this sort, where, as the witness has described, firing was taking place pretty sharply on either side, it would be utterly impossible to ascertain from which particular bullet Captain Wise unfortunately fell. I submit that it is not evidence in the matter, it is utterly impossible for any witness to know that.’

‘The witness states it as a
fact,
your Honour,’ Stawell interrupts, rather peeved at the presumption of his legal adversary. ‘It is for the jury to say whether they think it worth attending to or not.’

In cross-examination, Chapman is at least able to shake the soldier a little.

‘You are aware that this is a very serious charge against the prisoner, putting his life at risk, and I am quite sure you would not give testimony as to identity unless you felt certain of it. Had you ever seen the prisoner before that occasion?’

‘No.’

‘Were there other black men about the Camp there?’

‘There were a good many black men.’

‘Are you quite certain this was the one you saw there?’

‘I am positive, I assisted to escort him out of the Stockade.’

Which is one thing, but Lynott’s testimony amounts to no more than that he saw one black man among many black men fire only ‘in the direction’ of Wise. It is a long way from proof positive that he was the one who killed him.

The key witness in this regard is the 40th Regiment’s Private Patrick O’Keefe. For, gentlemen of the jury, this man,
this
man, actually witnessed John Joseph firing at Captain Wise. Tell them, Private O’Keefe.

‘Just as you got to it,’ Stawell asks, ‘did you see any one whom you now recognise?’

‘Yes, that coloured man there.’

‘What distance might you be from him?’

‘It might be about five or six yards, and I saw him discharge one barrel of a double-barrelled piece.’

‘Where was he when he fired, and where were you when you saw him?’

‘I was within about six paces of the entrance of the Stockade where he was. He was inside the Stockade. ‘

‘In what direction did he fire? ‘

‘He fired in the direction that I was coming up, both me and Captain Wise. Captain Wise fell, but I cannot say it was from the shot he delivered . . .’

At these words the Attorney-General is seen to slump a little because it is clearly going to be impossible to prove beyond reasonable doubt that Joseph fired the fatal shot when the key witness ‘cannot say’.

What makes matters worse is that, as Henry Chapman cross-examines the soldier, it is quickly established that besides Joseph – and more or less right beside him – ‘two or three’ other men were also firing! So who can say which shot from which gun killed Wise, most particularly when you know that the brave captain was wounded by
two
shots.

Hopefully the next witness, Thomas Allen – known to one and all as ‘Old Waterloo’ – might be able to provide some more cogent testimony?

The old man shuffles forward and is dutifully sworn in.

‘What is your Christian name?’ the Attorney-General begins.

‘Yes, that is the prisoner,’ says Old Waterloo, nodding towards John Joseph, as a laugh is raised in the gallery.

‘What is your
name
?’ repeats William Stawell, a little annoyed.

‘No; I have no pension at all; you see I am rather deaf . . .’

It is hopeless – even when the old man
does
understand the question, he proves unable or perhaps even unwilling to provide testimony that truly incriminates the American.

After some more legal manoeuvring, it is time for Henry Chapman to sum up the case for the defence, assisted by Butler Cole Aspinall. And it is now that Chapman truly comes into his own as he begins by dealing with the issue of the flag. After all, can it really be
High Treason,
to raise a flag bearing the Southern Cross? While some say it was a very peculiar kind of flag, this barrister does not.

‘I believe,’ he says with the flourish of one who is about to unveil a masterstroke, ‘that it may be the very flag that was hoisted and produced when the Anti-Transportation League paid a visit – that is, the delegates from Van Diemen’s Land, paid a visit to this Colony; and if I mistake not my learned friend the Attorney-General himself, who was always (and I think it highly to his credit that he was so) an opponent of transportation to these colonies, himself has acted under that very banner . . .’

On a roll now, while Stawell stares, shocked, in the manner of a man who is powerless to get out of the way of a runaway train before it hits him, Chapman now flourishes the very thing . . .

‘I must put this piece of physical evidence before your eyes, and ask you whether it was not the very flag . . . that was hoisted here in the anti-transportation days, and if the fact of hoisting that flag be at all relied upon as evidence of an intention to depose Her Majesty, then I can only say that my learned friend and myself ought to be included in this indictment.’

As it happens, so sickly does the Attorney-General look at this point that it would be a very hard-hearted jury indeed that would so indict him, but Chapman goes on for some time – deliciously, devastatingly – wondering just what the difference is between the so-called treasonous Eureka flag and the flag William Stawell was proud to gather under? Finally, however, even for the indefatigably merciless, there is no recourse but to be at least a little merciful, and he moves back to the diggers.

‘Suppose they did intend to bring their licenses to burn them, what effect would that have? It would be injuring themselves, it would have just the foolish effect, I may say, upon the license fee that I might produce by burning some of the notes of the Union Bank of Australia which I may happen to have in my pocket; it would be simply injurious to myself.’

As to the testimony heard from the likes of Henry Goodenough, who has identified John Joseph as being a part of the fight, this must be put in perspective. Chapman is completely merciless, his words lashing the English trooper in much the same manner that a gentleman might take his horsewhip, sir, to a cad, a cur and a . . . a . . . bounder! And what is worse, Goodenough was in the Stockade as a spy, which makes him
by definition
morally duplicitous!

‘There is positive evidence,’ Chapman thunders, ‘that four men were sent forth disguised in various ways: Goodenough was disguised as a digger, Peters as a storekeeper, and for what purpose?

‘For the purpose of acting as spies upon these men. Now, men who will be guilty of that extreme meanness of being spies under these circumstances, I say, are men who will not be very scrupulous of telling a lie when they come into the witness box. I believe it indicates a low moral condition which an honest mind naturally revolts from.’

In short, in this man named ‘Goodenough’ we have one who is nothing of the kind, and the same can be said of those other low beings pretending to be diggers while actually in the employ of this perfidious government.

The testimony of witnesses like Private O’Keefe, identifying a black man at a distance before dawn, along with other shooters standing beside him, has already been demonstrated to be completely unreliable.

‘It is quite clear, therefore,’ the fiery barrister says, ‘that no evidence whatever can be received that either one of these wounds was the cause of Captain Wise’s death.’

Beyond all the mechanics of who did what to whom and when, however, Chapman draws the jury’s attention to the ludicrous nature of all four counts of the indictment against the accused.

‘Now, gentlemen, look at that man at the bar. Do you suppose that that man, present as he may possibly have been, was present for the purpose of deposing Her Majesty from her rank and authority and station and kingly title in this Colony? Do you suppose that such an intention ever entered into his mind? Do you suppose that there was any intention in his mind to induce Her Majesty generally to change her measures? No, he never thought of such a thing.’

John Joseph, under strict instruction to look as stupid as possible – though he is not that – stares blankly back at him, blinking slowly.

For let the jury look at the whole picture here. Perhaps it is wrong then to meet in large numbers . . .? Well, it depends which way you look at it.

‘These men were driven to hold meetings that certainly afterwards became unlawful. They were induced to hold meetings at which they armed. They were unlawful meetings, I admit, but they were not High Treason. They might have been indicted for holding unlawful meetings; they might have been indicted for conspiracy; they might have been indicted for sedition, if their speeches were of that nature; but there was no treason in those speeches; they were unlawful, but not treasonable.’

Criminal to build a Stockade . . .? How could that possibly be? For what would any reasonable group of people do, when finding themselves fired upon?

‘Why would they raise a Stockade for the purpose of guarding themselves from the attacks that were apprehended? What does that prove? The only evidence given as to intention throughout the whole of this case is the words attributed to Lalor, and what does he say? Why, he says, “If the soldiers attack you, resist them, “ and that is what they did; and I say the soldiers marched up there without showing sufficient authority, and that want of authority stripped the case altogether of its treasonable character. It was an attack made on the part of men who were behind the Stockade, for the purpose of defending themselves against troops who had not put themselves in a lawful position, either by reading the Riot Act or by showing some authority under which they acted . . .’