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.
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. 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. 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".