Colonial Courts

The Colonial Courts of Victoria: Justice, Violence, and the Silencing of Indigenous Testimony, 1835–1876

MLA Educational Series — Law, Power, and Truth-Telling in Early Victoria

From the first British settlement at Port Phillip in 1835 until the late 19th century, Victoria’s colonial legal system claimed to uphold “civilisation and order.”
In practice, it protected the expansion of empire, not justice. Indigenous peoples — including the Wadawurrung, Wurundjeri, Dja Dja Wurrung, Gunditjmara, and Taungurung nations — were denied the right to speak, testify, or seek redress in colonial courts. This article traces how the legal system enabled violence and dispossession, examines key cases such as the Mount Cottrell massacre (1836), Lake Colac killings (1840), and Eumeralla Wars trials (1842–1846), and analyses the slow path toward limited recognition in 1876.
The story of colonial law in Victoria reveals how silence was built into the system — and how truth-telling today seeks to dismantle it.

The Law Arrives with the Flag

Legal Fictions and Imperial Authority

When Britain declared sovereignty over Port Phillip in 1835, it extended British law to the new colony. Yet under the doctrine of terra nullius, the Crown declared the land uninhabited in law — even as thousands of Indigenous people lived there. This contradiction defined all colonial justice: Aboriginal people were subjects to the law’s punishments, but excluded from its protections (Reynolds, 1987). The Supreme Court of New South Wales, sitting in Sydney, technically governed Port Phillip until 1851. Early settlers and officials such as Governor Richard Bourke insisted that British law should protect “natives” from settler violence, but in practice, no mechanism existed to enforce it. Local magistrates, often squatters themselves, acted as both judge and interested party.

The First Magistrates and Police

In the late 1830s, men like Captain Foster Fyans in Geelong and William Lonsdale in Melbourne oversaw the courts and police. They were charged with maintaining order among convicts, settlers, and Indigenous peoples. But with few officers and vast territories, justice relied on discretion, not law. Punitive expeditions and summary retribution replaced formal trial — often under the pretext of defending livestock or settlers (Clark, 1995).

Silencing Indigenous Testimony

Exclusion from the Courts

Under British colonial law, only Christians who swore an oath on the Bible could give evidence in court. Because most Aboriginal people were not Christianised, their testimony was considered “inadmissible.” This rule effectively erased Indigenous voices from every murder, massacre, and land dispute (Reynolds, 1987). As a result, settlers accused of violence against Aboriginal people were rarely, if ever, convicted. Meanwhile, Aboriginal people accused of attacking settlers could be hanged on the basis of white testimony alone.

The Legal Double Standard

Between 1835 and 1851, over 200 documented killings of Aboriginal Victorians occurred across the colony (Clark, 1995). Only a handful of settlers were ever charged — and none were executed. By contrast, more than 15 Aboriginal men were executed in the same period for attacks on colonists or stockmen, including cases based on coerced confessions and unreliable interpreters (Broome, 2005). The courts thus functioned as a tool of conquest, legitimising dispossession and protecting the interests of the squattocracy.

Case Studies: Law and Violence on the Frontier

1. The Mount Cottrell Massacre (1836)

After a shepherd named Charles Franks was killed near Werribee, John Batman and his men retaliated by shooting at least ten Wadawurrung people. When news reached Melbourne, no formal inquiry or trial followed. Batman, already a colonial hero, faced no punishment. The incident set a precedent for private retribution without legal consequence (Clark, 1995).

2. The Lake Colac Killings and the Sievwright Controversy (1840–1842)

Assistant Protector Charles Sievwright investigated reports that settlers on the western plains had murdered dozens of Aboriginal people, including women and children.
He gathered detailed evidence, names, and testimonies, forwarding them to Superintendent Charles La Trobe. However, La Trobe suppressed the reports, calling them “unreliable native hearsay.” Sievwright was dismissed from his post and publicly discredited (Clark, 1998). The perpetrators were never prosecuted. Historians now view Sievwright as one of the first colonial officials to record evidence of genocide in Victoria — a truth silenced by his own government.

3. The Eumeralla Wars and the “Trials of Resistance” (1842–1846)

In Gunditjmara Country, shepherds and settlers along the Eumeralla River demanded protection from Aboriginal “raids.” When two colonists were killed in 1842, a group of Gunditjmara men were captured by Native Police under Captain Henry Dana. They were tried in Melbourne and executed — without legal counsel, interpreters, or recognition of the war-like conditions in which they fought (Critchett, 1990). Meanwhile, large-scale massacres of Gunditjmara families were ignored.

The courts thus punished Indigenous resistance as “crime” while excusing settler violence as “defence of property.”

4. The Barfold and Mount Alexander Cases (1841–1843)

In Dja Dja Wurrung Country, several pastoral workers were killed following disputes over food and trespass. When suspects were captured, the Supreme Court in Melbourne declared the case “unprovable” because Aboriginal testimony was inadmissible. The accused were released — and settler militias retaliated by attacking camps, killing dozens.
No prosecutions followed (Broome, 2005). These cases reveal how legal inaction fuelled the escalation of violence across the frontier.

The Protectorate System and Its Limits

The Port Phillip Aboriginal Protectorate (1839–1849) attempted to mediate between settlers and Indigenous nations. Chief Protector George Augustus Robinson and his assistants (including William Thomas and Edward Stone Parker) gathered reports of atrocities and argued for Aboriginal legal rights.

Robinson petitioned the colonial government to allow Aboriginal people to give evidence. In 1843, a draft bill was proposed to permit “uncivilised persons” to testify after taking a non-Christian oath. The New South Wales Legislative Council rejected it, calling Aboriginal testimony “inherently untrustworthy” (Clark, 1998). The Protectorate itself was later dismantled in 1849, its reports archived and largely ignored — a bureaucratic silencing that mirrored the erasure of Aboriginal witnesses.

The Law Turns Inward: Class and Power Among Settlers

While the law failed Indigenous Victorians, it also reinforced class hierarchies among settlers. Wealthy squatters dominated the Magistrates’ Courts, sitting as unpaid justices of the peace over the very labourers who worked their runs. Shepherds, servants, and convicts were routinely charged with theft, drunkenness, or absconding. Sentences included flogging, hard labour, or imprisonment in the Melbourne Gaol, built in 1842. The same system that ignored massacres punished theft of a loaf of bread — revealing how colonial law served property over humanity.

Reform and Partial Recognition

The 1876 Evidence Act

It was not until 1876, over forty years after colonisation, that Aboriginal people in Victoria were legally permitted to give evidence in court without taking a Christian oath (Markus, 1990). The change came after decades of advocacy by missionaries, reformers, and some politicians who recognised the moral failure of exclusion. Even then, justice remained conditional: juries often dismissed Aboriginal testimony as “unreliable,” and systemic bias persisted in policing, sentencing, and land disputes.

The Long Shadow of Colonial Justice

The denial of Indigenous voice in the legal system left intergenerational consequences:

• It legitimised dispossession by ensuring no land or massacre claims could be proven.

• It normalised racial inequality in policing and sentencing that continued into the 20th century.

• It created enduring mistrust of legal institutions within Indigenous communities — a legacy addressed today through culturally informed justice models such as Koori Courts and the Yoorrook Justice Commission (Victorian Government, 2022).

Truth-Telling and the Reclaiming of Justice

In modern Victoria, truth-telling is reshaping how justice is understood. The Yoorrook Justice Commission (2022) has formally recognised that colonial courts systematically denied justice to Indigenous peoples. It calls for acknowledgement of historical massacres, restitution for sacred sites, and reform of current legal frameworks.

For communities such as the Wadawurrung Traditional Owners Aboriginal Corporation, truth-telling revives silenced histories — restoring the voices of ancestors who were never allowed to speak in court. Ceremonial law, oral history, and Country itself now serve as living witnesses where colonial courts once silenced testimony.

Conclusion

Between 1835 and 1876, the colonial courts of Victoria upheld empire, not equality. By denying Indigenous people the right to testify, the law transformed violence into silence and dispossession into legality. It was a system that punished the oppressed and protected the powerful — ensuring that the wealth of the colony was built on unpunished crimes.

Yet the survival of oral history, cultural law, and truth-telling reveals a deeper continuity of justice: one grounded not in colonial courts, but in Country, memory, and community.
In re-examining these histories, Victoria moves toward a new understanding of justice — one that listens, restores, and honours the voices once silenced.

References

Barwick, D. (1998). Rebellion at Coranderrk. Canberra: Aboriginal History Inc.
Broome, R. (2005). Aboriginal Victorians: A History Since 1800. Sydney: Allen & Unwin.
Clark, I. D. (1995). Scars in the Landscape: A Register of Massacre Sites in Western Victoria 1803–1859. Canberra: Aboriginal Studies Press.
Clark, I. D. (1998). The Journals of George Augustus Robinson, Chief Protector, Port Phillip Aboriginal Protectorate. Melbourne: Heritage Matters.
Critchett, J. (1990). A Distant Field of Murder: Western District Frontiers, 1834–1848. Melbourne: Melbourne University Press.
Markus, A. (1990). Governing Savages. Sydney: Allen & Unwin.
Reynolds, H. (1987). The Law of the Land. Ringwood: Penguin.
Victorian Government (2022). Yoorrook Justice Commission Interim Report. Melbourne.

Written, Researched and Directed by James Vegter (22 October 2025)

MLA

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Magic Lands Alliance acknowledges the Traditional Owners, Custodians, and First Nations communities across Australia and internationally. We honour their enduring connection to the sky, land, waters, language, and culture. We pay respect to Elders past, present, and emerging, and to all First Peoples’ communities and language groups. This article draws only on publicly available information; many cultural practices remain the intellectual property of their respective communities.