Application to the NSW State Coroner:

[Page setup by Dr Robert N Moles]

An application to re-examine the findings of the Magisterial Inquest dated 6th May 1865 concerning the death of Benjamin Hall.

Factual Summary

At dawn on 5th May 1865, the bushranger Ben Hall was surrounded by the police at a place by the Billabong Creek near Forbes NSW and shot to death.

On the following day, 6th May 1865, an Magisterial Inquiry was held at Forbes, presided over by the Police Magistrate, William Farrand (refer Appendix 1). A detailed account of the proceedings was reported in several newspapers, including the Sydney Morning Herald, the Western Advertiser and the Yass Courier.

A comprehensive statement was made under oath to the Inquiry by sub-Inspector Davidson, the leader of the police patrol, detailing events in the days prior to the discovery of Hall’s whereabouts, as well as an account of the shooting. A statement was also made to the Inquiry by the second-in-charge of the patrol, Sgt. Condell, detailing the facts of the shooting (refer Appendix 1).

The facts outlined in the statements of both officers are extensive and are broadly supportive of each other.

On 12th May, sub-Inspector Davidson wrote his official report, which essentially corresponds with the evidence given to the Inquiry; the one critical difference in these two versions concerns the fact of whether or not Hall had a gun in his hand when challenged and then pursued by the police (refer Appendix 2). This is a critical discrepancy and is discussed on page 5 of this application.

The Backgound of Benjamin Hall

The story of Ben Hall is the story of a young country man. He had moved to the Lachlan region with his father, elder brother and an elder sister in 1851, aged 14. He had no formal schooling, but at some stage he developed basic literary skills and was able to sign his name. He quickly found work on some of those large squatting runs south of the Lachlan River and came to be known as a reliable, sober and hardworking young man. 

In 1856 he married Bridget Walsh from Wheogo; he was 19, she was 16, and in 1859, a son was born, whom they named Henry. About the same time, Hall and his brother in law, John McGuire, applied for and were granted the lease of 10,000 acres of Crown land north of the Weddin Mountains. Over the next three years the partners established themselves and successfully bred and sold cattle to the miners on the nearby goldfields of Lambing Flat and later Forbes. Ben Hall was well-regarded and respected by his peers and the neighbouring squatters. He had no criminal record, was not under notice of the police and had never been suspected of involvement in criminal activity of any kind.

In 1862, his world was turned upside down. Early in that year Biddy left him for another man, taking young Henry with her. Hall was devastated by this event, although he may have contributed to the situation by his reputed liaisons with other women.

Unfortunately for Hall, it was about this time that the infamous highwayman, Frank Gardiner (alias Clarke, alias Christie, alias Smith) came to spend a lot of time on Sandy Creek and the neighbouring Wheogo station, as he had begun a relationship with Biddy’s younger sister Kitty (who was inconveniently married to a stockman on Wheogo named John Brown). Gardiner was a man of enormous charisma with an engaging personality and was energetic, industrious, clever and cunning. He was aged in his early thirties and had a significant influence over many younger men, including Ben Hall.

Hall’s first trouble with the police occurred when he was seen in the company of Gardiner in early 1862 when the latter held up and robbed two drays. Hall was soon arrested and charged with being an accessory, although he claimed to have only been riding nearby when Gardiner committed the robbery. After Hall had been held in custody at Orange for four weeks the charges were dismissed. However, the considerable costs of his legal defence had caused Hall and his partner McGuire to mortgage their property to a Forbes publican, John Wilson.

Worse was to come, for in June Gardiner influenced Hall (and a number of other young men) to participate in the Gold Escort robbery at Eugowra, a sensational heist when some £14,000 in gold and cash was taken. Again Hall was arrested, along with a number of others, some guilty, some innocent (although not Frank Gardiner – he had escaped to Queensland with a sizable share of the loot and with Kitty). 

Again the police case against Hall failed, as their main witness refused to identify Hall as having been involved in the robbery. (This man, Dan Charters, happened to be Ben Hall’s best mate). However, their spiralling legal costs caused the partners to forfeit ownership of Sandy Creek, so now, in the space of just a few months, Hall had lost both his family and his property.

Unfortunately, he then came to be involved with a number of idle young men, including such career criminals as Johnny Gilbert and John O’Meally. Hall was soon identified as being involved in a string of minor robberies and so the die was cast – his name appeared in the Police Gazette with a significant reward offered for his capture.

Many people were surprised at the turn of events, as it was considered to be so out of character for the man. During the course of the next two years he seriously considered giving himself up, and had a number of conversations with Fr. Tim McCarthy, a Catholic priest who had convinced some other young bushrangers to do just that. McCarthy later wrote that:

“Hall had promised me that within a month to deliver himself up, which I am convinced he would have done, if some of the unfortunate circumstances which surround a life of crime had not led him into deeper complications.”

McCarthy further observed: “It cannot be denied by those that knew anything of him that he had not a disposition to make himself right with society”.

This brief outline serves in some ways to explain the extraordinary degree of support and sympathy which Hall engendered at that time and which he still has today.

Points of Contention From the Original Finding

The facts of the case are fully detailed in the proceedings of the Magisterial Inquiry (Appendix 1) and in the official Police Report dated 12th May 1865 (Appendix 2).

Regarding the death of Ben Hall, two facts are clear. Firstly, he was not an outlaw, as defined by the Felons Apprehension Act, 1865, when he was shot down on 5th May 1865. This Act did not come into force until 10th May, 1865. Secondly, the police at Forbes should have been fully aware of this fact as they were in constant telegraphic communication with their superiors at Bathurst and in Sydney.

As the Felons Apprehension Act was not then in force, Hall was thus entitled to all the normal rights of protection under the common law, meaning that he could not be shot during the course of an arrest unless he was directly threatening the police.

Was the purpose of the patrol to the Billabong Creek to arrest the fugitives or to kill them? The evidence is certainly suggestive. In the Police Report (Appendix 2), Davidson stated that it was his intention “to attack them during the night in their camp” (paragraph 5) and again in para. 6 that “the only way we could take these men was to fire on them in their camp…  I determined on doing this, thinking that the Felons Apprehension Act was about this time in force”. 

These statements cannot be easily disposed of as the Felons Apprehension Act was certainly not in force at the time of the shooting.

Further, the police were armed with more guns and ammunition than were prescribed in the Police Regulations. Amongst their arms were double barrelled shotguns loaded with ‘Eley green wire cartridges’. These were in effect ‘shot concentrators’; each cartridge contained about eight lead shot balls of 8mm diameter contained in a thin wire ‘cage’, an arrangement which had the effect of concentrating the shot into a solid mass as it left the barrel on firing. A very deadly device and such weapons and ammunition were certainly not standard police issue.

The police were in plain clothes, and did they properly identify themselves before opening fire? Davidson has stated that he was almost 100 yards from Hall when the latter turned and saw a group of armed men in plain clothes running towards him.  What exactly was Davidson’s challenge to Hall, and could Hall have heard him clearly at such a distance?

On sighting these men, Hall turned and ran in another direction, a not unnatural reaction for anyone when confronted by a number of men armed with shotguns and rifles in such an isolated place.

The question of whether Hall directly threatened the police or in fact drew his revolver is a critical point. Certainly there was no mention of Hall firing at his pursuers. At the Inquiry, Davidson stated that “…I saw a man with a bridle in his hand, about 150 yards from where I was…”.  No mention of a revolver there. Significantly, in his statement to the Inquiry, Sgt. Condell made no mention of Hall having a gun in his hands, although one would expect that if Hall had held a revolver that fact would have been commented on by such an experienced police sergeant.

Critically, in the Police Report dated 12th May (Appendix 2), Davidson amended his statement to claim that Hall had both “a bridle and a revolver in his hands” as he left the cover of the trees (see paragraph 11). However, it would seem unlikely that a man would walk about holding a revolver while going to collect his horses when he thought that he was completely alone. Was this addition of Davidson’s influenced by the fact that by 12th May, he would have been made aware that the Felons Act was not in force when Hall was killed, hence the fact of whether or not Hall was directly threatening the police with a gun before they opened fire would be crucial to the police having the right to open fire as they did. Certainly Hall never fired his gun at the police.

Some other matters are worthy of mention. The police outnumbered Hall by eight to one. He was covered on three sides by armed constables hidden amongst the trees; the only avenue of escape was to run into the open plain. He could not reach his horses, and he walked with a permanent limp, the legacy of a badly broken leg from his younger days, so he was not a fast runner. He had no hope of escape on foot.

The first shots from the police, as described to the Inquiry, hit Hall in the back, testament to the fact that he was running away and not directly threatening the police when they opened fire. Furthermore, Davidson noted that even after Hall fell backwards to the ground “several other shots were fired afterwards” by the police surrounding him (see Inquiry, para. 3). To what purpose, as he was defenceless and lying on the ground when they did so?

Summary

It is quite apparent that the intention of the police on this patrol was to kill the fugitives. The facts outlined in the report of the Inquiry and in the Police Report confirm this intention. The circumstances of the actual shooting indicate that the police had covered all avenues of escape for Hall and that they opened fire even though Hall was running away and not directly threatening them. He certainly never fired his gun.

The verdict of ‘justifiable homicide’ is not consistent with the facts of the case.

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