Tracking down a just reward

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This was published 21 years ago

Tracking down a just reward

Ned Kelly had an intense dislike for blacktrackers, once referring to them as "little black devils".

The bushranger had reason to fear them. It was only when blacktrackers were called in from Fraser Island and Cape York that the Kelly Gang was finally crushed during the shoot-out with police in the Victorian town of Glenrowan in June 1880, ending a two-year rampage which had begun with Kelly shooting dead three policemen.

The volunteer trackers, employees of the Queensland Native Police, were lured by the promise of a cut of the then staggering reward of £8,000 offered for Kelly's capture, dead or alive. Six headed south to join the Victorian police hunt but one, Sambo, died of a lung infection soon after arriving in chilly Melbourne.

They tracked Kelly, his brother Dan, and gang members Joe Byrne and Steve Hart, until their police contingent cornered the fugitives in the Glenrowan Hotel.

The armour-clad Kelly, the only one of the four to survive the shoot-out, was jailed and hanged, aged 25.


Now, 120 years later, descendants of two of the trackers, Jack Noble and Gary Owens, or Barney, whose Aboriginal names were Wannamutta and Werannabe, are still waiting for a share of the reward.

A seven-year legal battle between the descendants and the Victorian and Queensland governments resumes in the Queensland Supreme Court today.

The descendants, Kurt Noble and May McBride, of Fraser Island, say Noble and Owens never received the £50 they were each promised.

After calculating compound interest of 12 per cent and adding damages, they are claiming $42 million for each tracker. The money would be spent on community projects to benefit the trackers' 1,000-odd living descendants.

That the case is still before the courts says much for the tenacity of John Lee Jones, an Aboriginal pensioner from Brisbane with no legal training who has doggedly pursued it through six hearings.

Though advised by sympathetic lawyers, Jones appears alone in court, arguing complicated legal points against the silks hired by Victoria and Queensland, both keen to avoid an outcome which could open a flood of claims over the estates of deceased Aborigines and Islanders.

Many legal experts said the action was doomed to failure when it was launched in 1994, but it splutters on. Last April, the Queensland Court of Appeal, by 2-1, found it "was not useless or futile" and struck down a Supreme Court decision that the descendants had no right to represent the dead men's estates.

Today, the Supreme Court will hear an application from Jones for an order requiring the two States to release bank accounts and other information which, he says, they have kept secret, claiming public interest immunity and legal privilege and other grounds. The Court of Appeal said material presented to it supported claims that Owens and Noble were each entitled to a share of the reward on the capture of Kelly and that no money was ever paid to them.

But the descendants face a number of difficulties. First, May McBride, 82, is now hospitalised with dementia. Then there is the statute of limitations and the problem of establishing whether the Crown has a continuing legal responsibility in respect of the trackers' estates. Like most Aborigines at the time, neither left a will. And as the dissenting appeal court judge said in his report: "The facts are now so old that it is hard to establish them ..." But it is not in dispute that the Victorian police were keen to have the trackers in the hunt for Kelly, and that money was no barrier.

The then Police Commissioner, F.C. Standish, in an 1879 telegraph to his Queensland counterpart, D.Y. Seymour, pleaded for the trackers along with "someone accustomed to manage them".

After approval from Queensland's Colonial Secretary, Seymour agreed on condition they be volunteers, receive extra pay, and be "assured of a fair share of the reward offered". Standish agreed they would get their reward if they "succeed in leading to capture or death of the outlaws".

At Glenrowan, Noble and Owens, along with the other trackers and their Queensland commander, Sub-Inspector Stanhope O'Connor, were in the thick of the day-long gun battle. The appeal court said material shows or suggests the pair had been under heavy fire and had "acquitted themselves well".

Within days of the gunsmoke clearing, 92 people, including Noble and Owens, applied for a share of the reward. The claims were assessed by the Victorian Police Rewards Board, and its report listed Noble and Owens simply as "Jackey, native tracker" and "Barney, native tracker".

But the board felt "it would not be desirable to place any considerable sum of money in the hands of persons unable to use it" and it recommended that "the sums set opposite to their names be handed to the Queensland and Victorian governments to be dealt with at their discretion".

The descendants claim both governments failed in their duties as trustees for the trackers by not paying them.

Contrary to the Victorian Police Commissioner's assurances, but in line with the reward board's recommendations, the money owed to Noble and Owens was paid to the Queensland government.

The Court of Appeal said while material supported claims that the money was never passed on, it was not possible to say if this happened through default on the part of the Queensland government.

White police from Victoria and Queensland, some not even at Glenrowan, had no difficulty receiving their rewards, which were substantially higher than the trackers. But in a rare gesture for the times, O'Connor refused to accept his £236 reward in protest at the treatment of his Aboriginal colleagues.

Repeated attempts were made to have the money paid to the trackers who, the Court of Appeal agreed, had risked their lives in the pursuit of law-breakers.

In an 1898 letter to the Queensland Police Commissioner, the then Aboriginals Protector, Archibald Meston, said Owens, whom he regarded as "thoroughly reliable", had told him that in response to repeated requests, he was assured the money was on its way. Meston believed Owens had been done "serious wrong".

The descendants say the reward was to help the trackers' "retirement with dignity". Instead, Noble, Owens and their families were incarcerated in Aboriginal confinement camps because they could not show visible means of support when they retired.

"Their children and their descendants were deprived of their rightful inheritance," says the descendants' claim.

Where to now? According to the Court of Appeal, the claimants may have a case in equity, if not in common law.

The court made clear they needed to be formally made administrators of the estate. Jones says efforts to obtain the letters are continuing, but he is meeting resistance from the Queensland Public Trustee Office.

It has yet to be established if the claimants have the legal standing to sue on behalf of the estates.

There are other problems. The court said the statute of limitations would be a difficult hurdle. The court did note that in Australia the statute of limitations cannot be relied on to justify striking out an action as an abuse of process.

At the end of the day, courts will be mindful of the possible implications if the case succeeds. As the dissenting appeal court judge suggested in his report, it would then "appear that any descendant of a person who died intestate, however long ago, may bring an action claiming to represent the estate".

The claimants will need to establish the extent of any liability of the Victorian and Queensland governments. For instance, did Victoria discharge its indebtedness by paying the rewards to Queensland? It remains uncertain whether the Victorian government was required by law to accept the recommendations of its rewards board.

Was Queensland obliged to pass on the money? If Victoria and Queensland fail in their concerted endeavours to stop the case proceeding to a full hearing, expect a good deal of buck-passing between them.

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