Northern Territory Supreme Court – The Prosecution Project

Until 1911 the Northern Territory was part of the jurisdiction of South Australia. In that year its administration passed to the Commonwealth of Australia. As the territory was not self-governing, all its legislation prior to 1978 was by ‘ordinance’, regulations enacted in accordance with policy determined by the Commonwealth government.

The first Northern Territory Supreme Court was established by the Supreme Court Ordinance 1911, which largely provided for a smooth transition from the previous South Australian judicial arrangements. In fact until 1918, appeal from a decision of the Northern Territory Supreme Court (a single judge) lay to the South Australian Supreme Court, and after that date direct to the High Court of Australia. In 1961 the Commonwealth government recreated the Supreme Court on a statutory basis through the Northern Territory Supreme Court Act 1961. Until the growth of the population justified the expansion of the court in the 1970s, there was always only a single resident judge of the court.

The erratic history of the jurisdiction in the twentieth century followed an even more confused set of arrangements in the later nineteenth century. The Northern Territory had at one time been part of a short-lived colony of ‘North Australia’ (1846-7). Its formal accession to South Australia was authorised by Queen Victoria in 1863. In the same year the South Australian legislature enacted the Northern Territory Act, which provided for the appointment of a Government Resident, who also held the office of a Special Magistrate, adjudicating in local courts established from 1872. In these early years, such courts might settle minor criminal matters, or commit those accused of more serious offences to a trial to be held at the Supreme Court in Adelaide. An abortive attempt by the South Australian government in 1873 to establish a separate Supreme Court of the Northern Territory was followed by a Northern Territory Justice Act 1875 that provided for the appointment of a local person (in fact the Government Resident) as a Commissioner to adjudicate in all but capital trials with the powers of a Supreme Court judge. Appeals from this court were to the South Australian Supreme Court – there were very few. Only in 1884 did the government finally decide to appoint a judge ‘of the Northern Territory’, separating the appointment from that of the Government Resident.

Foelsche, P. (1879). Court House and Esplanade, June 1879 Retrieved April 30, 2021, from http://nla.gov.au/nla.obj-141840500

The first so appointed was a Stipendiary Magistrate Thomas Kennedy Pater, in October 1884. His service ended in 1889 when the South Australian government decided again to combine the offices of Government Resident and Judge. Difficulties in obtaining a suitable person delayed the appointment of the next Judge until 1892 when Adelaide lawyer Charles James Dashwood took up the position. He was replaced in 1905 by Charles Herbert (also an Adelaide lawyer who had become a Northern Territory MLA in the South Australian Parliament in 1900) and then in 1912 by Samuel James Mitchell, another Adelaide lawyer and the last appointed Government Resident and Judge during the South Australian administration of the Territory.

With the Commonwealth assuming control from 1911, the Supreme Court of the Northern Territory also obtained a new judge, David Bevan, a young Melbourne lawyer. The Court held its hearings only in Darwin, in the building constructed for this purpose in the 1880s – trials were not conducted in Alice Springs until 1934. Bevan’s tenure was increasingly controversial in the circumstances of a small town and a restive labour union movement in the later years of the First World War, a period that ended in political upheaval, a Royal Commission and a Commonwealth government decision to dismiss Bevan and other senior government officials.

Bevan was succeeded in 1921 by 32 year-old Donald Roberts, who had practised in the Territory since being admitted to the bar in 1912. In turn, Roberts was succeeded by another local practitioner, Ross Mallam, in 1928. From 1926-1931 there were two Supreme Courts in the Northern Territory, served by the one judge sitting in Darwin – after the Northern Australia Act 1926 created the two territories of North Australia and Central Australia. By the time the next judge was appointed the two courts had become one again.

This time the appointee was from outside the Northern Territory, as was his successor. From 1933 to 1960 there were only two judges of the Supreme Court – Thomas Wells (1933-1951) from Sydney and Martin Kriewaldt (1951-1960) from Adelaide. Each influenced the lives of Territorians through the increasing number of cases that resulted from the growing intervention of the criminal law in the lives of the Territory’s majority population, the Indigenous peoples. The tenure of each of these long-serving judges was marked by their differing positions on the criminal law’s responsibilities in respect of Indigenous people who made up a high proportion of the territory’s population. In particular Kriewaldt became the first Australian judge to articulate an approach to Aboriginal offending that explicitly addressed the cultural context in which that occurred.

The unique character of the Northern Territory’s settler history explains some distinctive features of its criminal justice history. The Indigenous peoples made up a majority of the population until at least the 1950s. As settler society intruded on Indigenous domains, criminal prosecution accompanied and aided the intrusion. Settler society was itself not homogenous – Chinese settlers outnumbered European-origin migrants in the 1890s. Inter-racial offending was not so common a cause of prosecution but especially in the early decades resulted in quite unequal outcomes – with Aboriginal defendants much more likely to be convicted than non-Aboriginal in inter-racial homicide cases; Chinese accused also fared very poorly. Judge Bevan in 1913 conducted a detailed review that blamed the prejudice of all-white juries for these outcomes.

But more common in any case was prosecution for intra-racial (or inter se) personal offences, including homicide and assaults. In many cases these offences arose in the context of Indigenous law and obligation. The British criminal law system introduced into this society struggled to understand such practices. While their attitudes to Indigenous peoples and cultures were quite different, both Judge Wells and Judge Kriewaldt from the 1930s to 1960 met the challenge by mitigating punishment for many of those convicted in these inter se cases. The concern over the appropriateness of conventional penalties in punishing Indigenous convicted persons resulted also in a major policy innovation in 1934 when the Commonwealth government for the first time in Australia made the award of the death penalty discretionary, in cases involving ‘an Aboriginal native convicted of murder’ (Crimes Ordinance 1934, s. 6).

The small size of the settler population was a factor in other distinctive features of the Northern Territory criminal trial process. Before the First World War and after it, jury trials were notoriously biased in their deliberations over cases involving defendants very often well known to the jurors. The bias provoked judicial criticism as well as political controversy, resulting in the cessation of trial by jury except in capital cases in the 1920s, briefly restored in 1930 and then again restricted to capital cases (and Commonwealth offences) until 1962. The discrimination in civil law against Indigenous peoples also meant they were excluded from juries before 1962, when they became eligible to enrol as electors.

The Northern Territory’s archives lack court registers comparable to those available for other Australian jurisdictions for the period covered by the Prosecution Project (to the 1960s). Former judge and historian of the Northern Territory Supreme Court, Dean Mildren, addressed much of the deficiency in the record of criminal trials in recovering significant cases, published in two volumes of Northern Territory Judgments (1982 and 2001), and now available online at Austlii (http://www8.austlii.edu.au/). More recently the Prosecution Project has reconstructed from contemporary Darwin newspapers, as well as records in the National Archives of Australia, the record of prosecutions as best estimated at this point in time. This reconstruction of 1240 cases from 1873-1953 is now available (up to 1942) to search at the project website (https://prosecutionproject.griffith.edu.au/).