LAW AND DIS­OR­DER

The Weekend Australian - Review - - Profile - Denny Day: The Life and Times of Aus­tralia’s Great­est Law­man,

Arusty iron fence sur­rounds the grave but the sim­ple sand­stone head­stone has tipped over into the grassy stub­ble. The aura of death is com­pounded by an air of ne­glect: the head­stone’s in­scrip­tions have been ren­dered al­most in­vis­i­ble by 130 years of wind, rain, frost and re­lent­less an­tipodean sun­light. This is the gravesite of 19th-cen­tury po­lice mag­is­trate Ed­ward Denny Day (and his wife, Mar­garet), lo­cated on a slop­ing pad­dock in the Old Glebe Ceme­tery at Mait­land in NSW’s Hunter Val­ley.

When au­thor Terry Smyth vis­ited Day’s grave, he was dis­mayed to see how run­down it was. Nev­er­the­less, his vis­its con­firmed his sus­pi­cion that the fear­less po­lice mag­is­trate re­mained an over­looked his­tor­i­cal fig­ure, a “for­got­ten hero” who stood up for in­dige­nous rights on Aus­tralia’s law­less fron­tier when it was un­fash­ion­able, even danger­ous, to do so.

“This [Day’s story] is some­thing ev­ery­body should know,” says the Syd­ney-based writer. The au­thor of last year’s Aus­tralian Con­fed­er­ates clearly hopes his sec­ond his­tor­i­cal book, Denny Day: The Life and Times of Aus­tralia’s Great­est Law­man, will help cre­ate a place in the pan­theon of re­spected na­tional fig­ures for the 19th-cen­tury law en­forcer, who “changed his­tory and shocked the world”.

Day’s key legacy was his cap­ture of 11 men in­volved in the 1838 Myall Creek mas­sacre in which at least 28 un­armed Abo­rig­i­nal chil­dren, women and men were slaugh­tered as they camped on a pas­toral sta­tion in north­west­ern NSW. Up to 12 chil­dren were mur­dered and be­headed in this orgy of vi­o­lence. One Abo­rig­i­nal man was burned alive; one wo­man was spared from the slaugh­ter only to be re­peat­edly raped by the killers.

The Myall Creek case marked the first time white men in the pe­nal colony were con­victed — and sub­se­quently hanged — for mas­sacring Abo­rig­ines. Smyth ar­gues that with­out the po­lice mag­is­trate’s in­ves­ti­ga­tion, which in­volved a 300km trek on horse­back, jus­tice would not have been done. “The killers would have got­ten away with it but for Day’s in­ter­ven­tion,” he as­serts.

Denny Day is partly a bi­og­ra­phy of the ad­ven­tur­ous if aus­tere po­lice mag­is­trate who hunted bushrangers and brought the Myall Creek mur­der­ers to jus­tice, and partly an ac­count of one of Aus­tralia’s worst fron­tier mas­sacres and its af­ter­math. As the book doc­u­ments, of the 11 men the po­lice mag­is­trate ar­rested, seven faced trial. The case even­tu­ally would in­volve two dra­matic tri­als, as the first ended in a not-guilty ver­dict: the jury had taken just 15 min­utes to make up its mind.

In the sec­ond trial, which partly fo­cused on the mur­der of a young Abo­rig­i­nal child, the seven de­fen­dants were found guilty of mur­der. All were sent to the gal­lows and this caused up­roar in the colony. Ear­lier, the Syd­ney Her­ald, then the voice of pas­toral­ists and squat­ters, had fumed: “The whole gang of black an­i­mals [the mur­der vic­tims] are not worth the money the colonists will have to pay for print­ing the silly court doc­u­ments.”

Given th­ese vir­u­lently racist at­ti­tudes, Smyth con­tends that “it was easy to get away with th­ese things [abus­ing or killing Abo­rig­ines on the re­mote fron­tier]. You could hide in plain sight and no­body would care.” But Day con­ducted a foren­sic in­ves­ti­ga­tion, un­usual for its time, col­lect­ing hu­man teeth, a jaw­bone and — most mov­ing of all — a young child’s rib bone from the mur­der site.

“He could have eas­ily gone through the mo­tions but he didn’t. He had a stub­born be­lief in old-fash­ioned jus­tice,” says Smyth. “It’s very easy to make the right noises as peo­ple often did in those days. But to get in the sad­dle and go there, that sur­prised ev­ery­body.”

While trav­el­ling to the re­mote crime scene, Day and his in­ves­ti­gat­ing posse were shot at and stam­ped­ing cat­tle were redi­rected their way. “I have had to en­counter ev­ery ob­sta­cle that un­will­ing wit­nesses could pos­si­bly throw in my way,” the po­lice mag­is­trate wrote in his un­der­stated way at the time. Nearly 200 years later, Smyth, a fa­ther of three grown chil­dren, spent a week on horse­back nav­i­gat­ing some of the same coun­try­side as Day. “It was dif­fi­cult. I can’t imag­ine how dif­fi­cult it would be to ac­tu­ally gal­lop down­hill while shoot­ing at some­body,” the au­thor says.

Here he is re­fer­ring to Day’s most dar­ing case — his cap­ture in 1840 of bushrangers known as the “Jew­boy gang” (be­cause their leader was Jewish), who were wanted for rob­bery and mur­der. At one point, Day was in­volved in a shootout with the gang that was “redo­lent of the Amer­i­can wild west” — a mus­ket ball grazed the mag­is­trate’s ear and he wres­tled the shooter to the ground. (Six gang mem­bers were ar­rested and later hanged.) This dra­matic cap­ture “sort of re­deemed Day”, says Smyth. But the pre­dom­i­nant colonial view seemed to be that the mag­is­trate’s role in the Myall Creek case was best for­got­ten: when the fa­ther of 11 died in 1876, aged 75, news­pa­per obit­u­ar­ies failed to men­tion his in­ves­ti­ga­tion.

While Day’s con­tri­bu­tion to bring­ing racial jus­tice to the fron­tier has yet to be prop­erly ac­knowl­edged, John Henry Flem­ing, ring­leader of the Myall Creek mas­sacre, es­caped “scot­free”, claims Smyth. Flem­ing, then aged 22, was the only free­born man in­volved in the crime; the other killers had been trans­ported to Aus­tralia as con­victs. Smyth says: “Day was de­ter­mined to catch Flem­ing but he never did. Flem­ing was well hid­den by the very wealthy and in­flu­en­tial squat­ters in the up­per Hawkes­bury and else­where, so he got away with it.”

From a pros­per­ous farm­ing fam­ily, Flem­ing even­tu­ally re-emerged in Wil­ber­force on Syd­ney’s out­skirts. “It wasn’t that dif­fi­cult in those days to rein­vent your­self,” ex­plains Smyth. “All he did, ac­tu­ally, was put another M in his sur­name. And it was a long way from Syd­ney to the Hawkes­bury.” Flem­ing went on to be­come a prom­i­nent farmer, church war­den and — in a twisted irony — a mag­is­trate. To­day, nearly 200km from the Days’ ne­glected grave, lies Flem­ing’s elab­o­rate vault in the Wil­ber­force ceme­tery. Ac­cord­ing to Smyth, it is the most im­pos­ing grave there. “The fan­ci­est grave in that ceme­tery be­longs to a mur­derer,” he says in­dig­nantly. “Flem­ing was seen as a lo­cal hero, a pil­lar of that com­mu­nity. Yet up there [in East Mait­land] lies Denny Day’s and Mar­garet Day’s grave, with the head­stone fallen into the dirt.” (Last year Mait­land City Coun­cil drew up a con­ser­va­tion plan for the his­tor­i­cally sig­nif­i­cant ceme­tery). Now 65, Smyth grew up in the Mait­land area know­ing noth­ing of Day’s ex­ploits and achieve­ments. He points out, though, that Day could be “cur­mud­geonly”: “He did him­self no favours in a lot of ways.” Dur­ing his early days on the bench, he or­dered a flog­ger to give a long-haired young of­fender a hair­cut. The roughly shorn (and no Terry Smyth, left; the grave of Ed­ward Denny Day and his wife, Mar­garet; a por­trait of Denny Day, in­set below. doubt hu­mil­i­ated) young man then re­ceived his sen­tence of 50 lashes.

Smyth’s book ac­knowl­edges that in 1830s NSW there were real fears of vi­o­lent at­tacks by Abo­rig­ines as they struck back against white set­tlers, squat­ters and as­signed con­victs oc­cu­py­ing their hunt­ing and fish­ing grounds. The Syd­ney Her­ald re­ported 16 murders of pas­toral­ists on the NSW fron­tier be­tween 1832 and 1838. How­ever, the broader re­al­ity was that far more blacks than whites were killed in fron­tier skir­mishes and that reprisal killings by whites in­vari­ably claimed a dis­pro­por­tion­ately heavy toll of black lives. More­over, in the Myall Creek case, the NSW Supreme Court found that the crime was un­pro­voked, and that in­no­cent peo­ple, in­clud­ing “ba­bies hang­ing at their mother’s breasts”, were “slaugh­tered in cold blood”.

Day’s colour­ful ca­reer as a law en­forcer con­tin­ued af­ter the Myall Creek and Jew­boy gang cases. In 1867 he freed part-Abo­rig­i­nal fe­male bushranger Mary Ann Ward (she was Cap­tain Thun­der­bolt’s part­ner) af­ter she was wrongly con­victed of steal­ing cloth. In 1850 he was given a ma­jor pro­mo­tion — he be­came Syd­ney’s po­lice chief, but he was forced to re­sign six months later. His crime? Get­ting smashed at the lord mayor’s fancy-dress ball.

Born in Ire­land in 1801, Day was part of the An­glo-Ir­ish es­tab­lish­ment. He served in the Bri­tish army in In­dia be­fore em­i­grat­ing to Aus­tralia in the early 1830s. Smyth says with a chuckle that his sub­ject’s early life “took a lot of dig­ging”, partly be­cause the as­sumed facts “quite often were just bloody well wrong”.

Denny Day has proved to be a “voy­age of dis­cov­ery”, even for some­one who had been re­search­ing the mag­is­trate’s life, on and off, for years. As Smyth re­traced the law en­forcer’s steps, he “dis­cov­ered how much I didn’t know about Denny Day and those times”. He also vis­ited the Myall Creek mas­sacre site and in­ter­viewed de­scen­dants of the vic­tims and per­pe­tra­tors. The killing field is still on pri­vately owned pas­toral land and is over­looked by a mon­u­ment that has been de­clared a na­tional her­itage site. Vis­it­ing this haunted place “was an emo­tional ex­pe­ri­ence”, says the au­thor. “You look around and you just think, ‘How could the devil have once stalked th­ese pretty hills?’ ” $34.99, is out now. by Terry Smyth, Ebury Press,

HE HAD A STUB­BORN BE­LIEF IN OLD­FASH­IONED JUS­TICE

TERRY SMYTH

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