Barry opened his argument by acknowledging the significance and novelty of the case, adding that he was "also impressed with the assurance of its being highly interesting as well to those resident in this district as to the inhabitants of the neighbouring colonies."

Barry also referred to a report recently made by George Grey, the recently appointed Governor of South Australia, to the Colonial Secretary concerning his views on the Aboriginal people of South Australia, in which Grey advocated that "the aboriginal natives should be tried by British law as now dispensed with respect to the European subjects of Her Majesty resident in the colony, and visited with punishment for offences committed by the natives amongst themselves".

"[1] Barry refined the proposition in this way: "That there is nothing in the establishment of British sovereignty in this country which authorizes our submitting the aboriginal natives to punishment for acts of aggression committed 'inter se.

"[4]Barry also noted the 1774 case of Campbell v Hall, in which one issue was the British acquisition of sovereignty over Grenada, where those same principles had been explored by Lord Mansfield.

Grenada had been ceded to the English by the French under the 1763 Treaty of Paris, and so Lord Mansfield's principles dealt with conquest and cession; Barry however argued that the asserted basis for British sovereignty in Australia was not either of these methods, but rather "occupancy alone".

Indeed, Barry argued that the "mere act of occupancy that gives to the crown a right to the soil, can confer no authority whatsoever over the aboriginal inhabitants as subjects, unless there be some treaty or compact, or public demonstration of some kind on the part of the natives, by which they testify their desire to come beneath the yoke of the law"; he argued that the Aboriginal peoples of Australia had made no such treaty, nor any such demonstration.

[1] Barry acknowledged the introduction of the Native Police, and the institution of the Port Phillip Protectorate, but said that in reality those measures were intended more for the protection of white settlers than for the Aboriginal people.

"[1] Barry concluded his argument by saying to the prosecutor Croke that he "will not, though he were to erect on every hill throughout the district a gallows as lofty as that on which Haman expiated his guilt, reduce these people to the condition of willing, consenting, and convinced dependants on the British crown.

He then noted that it was not disputed that the colonial courts had jurisdiction over crimes committed by Aboriginal people against the colonists, or vice versa, giving several examples of such cases.

He quoted from the testimony before the Committee of William Broughton, the Anglican Bishop of Australia, who was of the view that the early settlers were wrong to presume that the Aboriginal people were lacking in intellect, that rather their way of life was attributable to their "love of erratic liberty".

He also quoted from the submission of the Attorney-General of New South Wales Saxe Bannister, who had argued that the customary laws of the Aboriginal people ought to be studied and recorded, so that they could be followed and respected by the colonial courts in appropriate cases.

[1] Next, Judge Willis discussed the notable decline in Aboriginal population around the colonial settlements, as noted in the Select Committee's report, and posed the question that, if the Aboriginal people were indeed to be considered British subjects, subject to British laws and entitled to their protection, why had the executive government done nothing to help them, and why had the judiciary not "put forth the protecting arm of legal authority"?

He observed that although the legal authorities claimed that sovereignty over Australia was acquired by occupation, the country was not vacant, but already occupied; nor had it been conquered or ceded under a treaty.

"[1] Citing the example of the Treaty of Waitangi, first signed on 6 February the preceding year, Judge Willis declared himself "quite at a loss to discover how the aborigines of New Zealand can be considered in a different light to those of Australia Felix."

The amended Commission given to Captain Arthur Phillip had, after all, included within the definition of the colony of New South Wales most of New Zealand, and the Judge said that he could think of no reason why a similar treaty might be pursued in Australia, given that the rights of indigenous peoples within the same territory and under the same government could surely not be different.

Though the Maroons were not indigenous peoples, the treaty was nevertheless "[a] pretty strong acknowledgement of a rude and dependent community being permitted to govern itself by its own laws in a British colony", the Judge said.

[1] Having compared the Australian situation with America, New Zealand, Jamaica and Saint Vincent, Judge Willis then drew a contrast with the areas under the British Raj.

"[1] Judge Willis concluded that: "From these premises rapidly indeed collected, I am at present strongly led to infer that the Aborigines must be considered and dealt with, until some further provision be made, as distinct, though dependent tribes governed among themselves by their own rude laws and customs.

[5] Bruce Kercher suggests that, if Bonjon had not ultimately been discharged, and instead tried and found guilty, the jurisdiction point would have been heard by a full court in Sydney, which almost certainly would have overturned Judge Willis' position.

[8] Ann Galbally has argued that, rather than his true concern being for the Aboriginal people, Judge Willis' aim was to embarrass the government and his judicial rivals in Sydney by way of the decision.

[9] Kercher, however, argues that Willis' views were drawn from the same stock as the abolitionist movement that had recently ended slavery in the British West Indies, and said that he "was the most important legal official in colonial Australia who took seriously the idea that Aborigines had their own laws and customs".

[5] Whether because R v Murrell was decided by a full bench, or because it was the case that was made available to practising lawyers, it remained the preferred position in legal sources throughout the twentieth century.