Queensland Courts – The Prosecution Project

Queensland

Early Justice
Supreme Court
Other Courts
Criminal Law
Court Records
Legislation
Online Resources
Further Reading

Early Justice

In 1824 Queensland became both a subject and an instrument of British justice when Moreton Bay was selected as the suitable location for a new penal settlement. Judicial authority was invested in the local commandants, who were given the powers of magistrates. Misdemeanours were penalised by solitary confinement on bread and water, or by whippings of up to 250 lashes. One convict, for example, received 100 lashes for drunkenness and assault on a police constable. Captain Patrick Logan was regarded as a particularly harsh commandant, his use of severe floggings inspiring a former convict of Moreton Bay to pen the exposé The Fell Tyrant, or the Suffering Convict in 1836.

When the Moreton Bay penal colony closed in 1842, the area under settlement expanded into the Darling Downs, Ipswich and Maryborough regions. The summary justice system expanded accordingly, with Courts of Petty Sessions established in the new regions to hear minor criminal matters. Most of these courts were presided over by lay justices of the peace functioning on the traditional English model, but by the time of Separation in 1859 there were already three full-time magistrates, known as police magistrates. Police Magistrates were integral to the development of the free settlement, taking up a variety of responsibilities today conducted by local government authorities.

As Moreton Bay remained part of the colony of New South Wales, more serious crimes remained under the jurisdiction of the judicial authorities in Sydney. Unwillingness among settlers to undertake prosecutions that required them to travel so far south meant some early criminal activity was simply ignored. One of the Moreton Bay cases heard at Sydney – the trial, conviction and execution of William Fyfe for the murder of sawyer Robert Cox at Kangaroo Point in 1848 – has since become the subject of some historical speculation due to claims the crime was actually committed by Brisbane entrepreneur and founding father Patrick Mayne.

In 1850 the New South Wales Supreme Court introduced a circuit assize court at Moreton Bay, allowing serious criminal cases to be heard at Brisbane during routine visits by a Sydney-based judge. Roger Therry was the first Circuit Court judge to visit Brisbane. He used his address at the opening of the first proceedings to lament the extent of drunkenness in the colonies, which he declared to be the source of all crime. The trials heard at the sessions well-illustrated his point: the first case involved a man who had committed two robberies while under the influence of drink; the second involved the theft of twenty gallons of rum; and another case could not be called because the main witness was drunk.

The fledgling settlement became part of the New South Wales Circuit Court rotation, although private barristers were often reluctant to travel to travel so far to offer legal assistance to local residents. In 1855 the New South Wales government enacted the Moreton Bay Judge Act authorising the appointment of an additional Supreme Court judge to help oversee the district. However, the first resident Supreme Court judge Samuel Frederick Milford, appointed in 1857 under the Moreton Bay Supreme Court Act, did not remain in office following Separation from New South Wales in 1859. He was replaced by Alfred Lutwyche, who later became the first judge of the Supreme Court of Queensland upon its official creation in 1861.

Supreme Court

The Supreme Court at Moreton Bay established by the New South Wales Parliament in 1857 operated from the chapel of the old convict barracks in Queen Street. Although Queensland separated from New South Wales in 1859, a constitutional provision for a Supreme Court of Queensland was not established until 1861. Early in 1860, however, Justice Lutwyche in ex parte King determined that even without this legislation the court had effectively become the Supreme Court of Queensland when the colony became a separate political entity.

Through the Charter of Justice 1823, the Supreme Court of Queensland inherited the common law jurisdiction of the three superior courts at Westminster, giving it authority over criminal, civil and equity matters. Matrimonial jurisdiction – that is the power to hear divorce cases – was added in 1864. Vice-Admiralty jurisdiction was vested in a judge of the court; in 1890 it was vested in the court itself. The different jurisdictions belonging to the Supreme Court were held to operate independently of each other. This was a legacy from England, where the particular jurisdictions were in fact vested in separate courts. In Queensland though, the numerous functions associated with each of the Supreme Court’s jurisdictions were performed simply by the Registrar and his meagre staff, completing the same duties but in different capacities and under a variety of titles.

In 1869 the Supreme Court became the subject of a colonial scandal when it was discovered that there was a deficiency in the accounts kept by the Supreme Court Registrar, Mr J. S. Ball, amounting to almost £1500. The Legislative Assembly appointed a Select Committee to inquire into the defalcations and into the administration of justice more generally. After several interviews in which everyone denied responsibility for overseeing the work of the Registrar, the Select Committee delivered a progress report in August 1869 but no final recommendations.

Figure 1. Supreme Court in Brisbane, 1887. John Oxley Library, 202753.

The Supreme Court continued to sit at the convict barracks in Queen Street but by 1870 it had become apparent that a purpose-built courthouse was needed. Prominent colonial architect Francis Drummond Greville submitted plans for an elaborate two-storey neoclassical building to be situated on George Street. Chief Justice Sir Charles Lilley opened the new Supreme Court in 1879. An arson attack in 1968 damaged the building and a new courthouse was subsequently erected on the site in 1976. The Supreme Court was relocated in 2012 to a new legal complex between George, Roma and Turbot streets.

Outside of Brisbane, criminal justice at the highest level was administered by the Supreme Court on circuit, based upon the model of the Assize Courts in England. In 1860 the Supreme Court judge, Justice Lutwyche, travelled to Ipswich, Toowoomba and Maryborough. After his first visit to Maryborough, Lutwyche recommended that it be left off the circuit, stating that there was not enough business there to justify its inclusion. A Select Committee appointed to report on the Judicial Establishment ignored his advice; politicians were aware that rural centres resented being deprived of a circuit judge. There was considerable local disquiet in Innisfail when its Circuit Court was abolished in 1927, a decision prompted by the strong aversion Innisfail jurors had, according to the Police Union, to delivering guilty verdicts (Townsville Daily Bulletin, 10 February 1927, 7).

New circuits were added as European colonisation expanded into the north; however, by 1874 the northern demand was so great that a permanent Supreme Court presence was established at Bowen.

Figure 2. Courthouse at Bowen, 1894. John Oxley Library, 25660.

Additional circuits were established at Roma in 1888 and Bundaberg in 1890; while the circuit for the northern Supreme Court included Townsville (1874), Cooktown (1875), Charters Towers (1883), Mackay (1884). Normanton (1887) and Cairns (1889). The selection of circuit towns, and the decision to establish a Supreme Court at Bowen then later to transfer it to Townsville in 1896, was partly an attempt to appease separatist sentiment in north Queensland.

Sir Samuel Griffith, in his capacity as Chief Justice from 1893, attempted to integrate the disparate judicial forces across the northern and southern parts of the state by introducing a single integrated law calendar to regulate sittings for the whole of Queensland. Brisbane judges were additionally required to share the circuit work in the north with the northern and central judges, who were included in Full Court sittings at Brisbane. There were initially some difficulties retaining these arrangements when Griffith was appointed Chief Justice of the High Court of Australia in 1903, leaving the Queensland Supreme Court short of a judge for several years, but the relative unity of the decentralised Supreme Court today remains one of Griffith’s many legacies. Queensland is the only Australian mainland state to have a permanent Supreme Court outside the capital, with northern cases continuing to be heard at Townsville.

Figure 3. Sir Samuel Walker Griffith, 1874. John Oxley Library, 53364.

In contrast to European legal systems, where future judges enter a state-administered Justice Department at a young age to train for a judicial career, Queensland followed the Anglo-American convention of appointing barristers and, from 1881, solicitors to the Supreme Court bench. The only statutory qualification necessary for judicial appointment was five years standing as a barrister or solicitor in the United Kingdom or one of the eastern Australian colonies. Appointees usually had extensive experience through practice of law; however, in 1917 it was decided that the statutory requirement of five years’ standing only meant the specified time after admission to practice had passed and that legally-qualified public servants were therefore also eligible for judicial appointment.

English law, specifically the 1701 Act of Settlement, guaranteed judicial tenure and ‘a large measure of independence from the executive branch of government’, but did not apply in the colonies. The judiciary did not attain the same degree of tenure or judicial independence from the executive in Queensland until the 1867 Supreme Court Act. Ultimately though, in 1920 it was ruled by the Privy Council in McCawley v. The King that all such constitutional safeguards of judicial independence remained at the mercy of the legislature.

During the late nineteenth century judges came into conflict with the Queensland government on several occasions. In 1863 Justice Lutwyche’s outspoken public involvement in Queensland politics brought him close to removal. At this stage judges had tenure for life ‘during good behaviour’ and could only be removed on orders by the Governor as representative of Crown. The matter could then be the subject of appeal to the Privy Council in England. As a result, Governors and governments were loath to adopt such means of removal. Lutwyche’s position was saved when the Chief Justice, Sir James Cockle, extracted a promise from him that he would refrain from further political commentary. Thirty years later, Chief Justice Lilley was compelled to resign by a mixture of public and private pressure as a result of his support for socialist and republican causes.

In 1921 lifetime judicial tenure was abolished when a mandatory retirement age of seventy years was introduced. In this year the Chief Justice also received the authority to direct his colleagues to sit in any part of the state and the power to nominate who would sit in the Full Court.

In addition to the judges, administration of the Supreme Court devolved upon a number of court officials. The principal officer of the court was (and remains) the Registrar, who was charged by the rules of court with the custody of court records, supervision of the issuing of writs, filing entries of appearance, drawing and settling court orders, maintaining files and indexes, receiving court fees, and attending sittings of the Full Court. Few of the early incumbents in Queensland possessed any formal legal qualifications until the appointment in 1869 of J. Mackenzie Shaw, barrister of Queen’s Inn, Dublin. By this stage the Registrar was being assisted by a chief clerk, second clerk and a messenger.

Dating back to the time of the first resident judge at Moreton Bay, the court also employed a clerk-associate, later known as a judge’s associate. Acting as a personal secretary to the judge, the associate’s duties included arraigning the accused, recording circuit proceedings, marking and taking custody of exhibits at trial, receiving court process and pleadings, and endorsing files and indictments with orders, sentences and judgments of the court. Meanwhile, the court tipstaff was employed to carry messages for the judge; from 1862 the tipstaff appointed to assist Justice Lutwyche also had responsibility for maintaining the Supreme Court Library. The office of tipstaff was discontinued in Queensland in 1903, although it remains active in other Australian courts.

The Sheriff, a role taken from England but adapted over time to suit local exigencies, also assisted the business of the court. W. A. Brown was appointed as the first Queensland Sheriff in 1859. The Queensland Sheriff was charged with the function of serving writs, summoning jurors and executing other court orders and processes. Bailiffs were appointed to assist him in these duties under the Sherriff Act of 1875.

From 1844, the ultimate tribunal of appeal in Queensland, as in other Australian colonies, was the British Privy Council. However, from its inception the Queensland Supreme Court in Banco, that is all the Supreme Court justices sitting together as the Full Court, heard appeals of decisions arrived at in the lower courts or at the Supreme Court itself. This was a deeply unsatisfactory system while Lutwyche remained the only judge in Queensland, presiding over the appeals of decisions that he himself had authored. The system became more equitable when Sir James Cockle joined him as Chief Justice in 1863. By 1895 the appellate Full Court could be constituted by any two or three of the total complement of five judges of the Supreme Court.

Appeals at this time remained limited to questions of law, with Crown Cases being ‘reserved’ for consideration by the Full Court when a trial judge felt the effect of legislation or the common law on an issue was uncertain. Appeals based on the wrongness of the facts found at the initial trial, and appeals as to the appropriateness of particular sentences imposed, were not allowed until the Criminal Code Amendment Act of 1913. In 1991 the Queensland Supreme Court was restructured into two divisions, the Trial Division and the Court of Appeal.

Other Courts

The Courts of Petty Sessions continued to operate as the base level of criminal justice in Queensland following separation. The justices of the peace and police magistrates responsible for the administration of these courts also performed a wide range of duties as representatives of the central government in outlying parts of Queensland, such as acting as electoral officers, registrars of Births, agents for the Lands Department, and customs, immigration and quarantine officials. The only legal training or instruction many of these early magistrates had was from watching proceedings at the circuit courts, or by references to manuals such as J. K. Handy’s 1869 Queensland Magistrate’s Guide.

In 1909 the Justices Act Amendment Act conferred on police magistrates in specified districts the exclusive power of adjudicating at petty sessions, to the exclusion of honorary justices, when a police magistrate was present to constitute a court. The term ‘police magistrate’ was changed to ‘stipendiary magistrate by the 1941 Justices Acts Amendment Act. Under the Justices Amendment Act 1964, the Court of Petty Sessions were replaced by Magistrates Court as the first tier of criminal justice.

An intermediate tier of courts, known as District Courts, was established between the Courts of Petty Sessions and the Supreme Court under the authority of a New South Wales statute in 1858. This was repealed and replaced by a local Act in 1867; which was in turn replaced by another enactment in 1891. Criminal matters at the District Courts involved a trial by jury. The courts had the power to try indictable offences that did not carry the death penalty. They were also initially excluded from hearing some specific crimes such as blasphemy, perjury and bribery.

Originally, there were three District Courts: the Metropolitan, meaning Brisbane; the Western, based in Dalby; and the Northern, in Bowen. In 1878 a District Court judge, northern Justice William Hirst, became the first Queensland judge to be dismissed for misbehaviour after his numerous absences from duty and his failure to pay debts for which he was sued in his own court.

Figure 4. Northern District Court Judge William Henry Abbott Hirst (right). John Oxley Library, 195312.

As in the Supreme Court, the District Court judges undertook a circuit of other centres. By 1900 the Metropolitan District judge was performing circuit duty at Ipswich, Toowoomba, Warwick, Stanthorpe, Dalby, Roma, St George, Charleville, Cunnamulla and Goondiwindi; the Central District judge was visiting Rockhampton, Maryborough, Gympie, Bundaberg, Rockhampton, Mount Morgan, Childers, Clermont, Gladstone, Springsure, Tambo, Blackall, Winton, Barcaldine and Longreach; and the Northern circuit towns included Cooktown, Charters Towers, Hughenden, Townsville, Mackay, Port Douglas, Herberton, Cairns, Normanton, Croydon, Cloncurry, Georgetown and Thursday Island.

The District Court was abolished in 1921 but reinstated in 1958 by the District Courts Act. This was subsequently replaced by the District Court of Queensland Act 1967.

In 1907 the Children’s Courts Act allowed children in Queensland to be processed in private by this special court. The creation of the Children’s Court was intended both to avoid unnecessarily intimidating or shaming young offenders, or, on the other hand, encouraging them to see themselves as heroic outlaw figures.

Criminal Law

When Queensland was established as a British colony, it inherited the English common law system and, under the Australian Courts Act 1828, all the laws and statutes in force in England as at 28 July 1828. Under common law, judges determine the bulk of the law relating to criminal justice, as the principles and precedents established in cases must be subsequently followed. However, particular aspects of the law were modified or clarified by Parliamentary legislation in England.

Queensland initially functioned on the same model. The Colonial Laws Validity Act (UK) 1865 enabled colonial parliaments to enact or amend laws as they wished, although they still were confined by some imperial limits. Two Acts were immediately passed to clarify the most significant areas of criminal law, the Larceny Act and the Offences Against the Person Act. During the late nineteenth century Queensland went on to pass a number of statutes on disparate areas of criminal justice. While these often replicated legislation that had been passed in England, some legislative provisions were intended to deal with unique colonial conditions.

While bushranging is more typically associated with rural Victoria and New South Wales, Queensland was also prey to the practice, particularly in the central and northern districts. Bushranging activity in central Queensland in the early 1860s encouraged the inclusion of a provision in the Larceny Act 1865 mandating the death penalty for armed robbers who wounded any person before, during or after the commission of a felony. During the trial of Joseph Wells at Toowoomba in 1880, the provision came under attack from members of the legal profession, including several parliamentarians, leading to its repeal.

Queensland also departed from British example in laying out provisions for the medical examination of prostitutes under the 1868 Contagious Diseases Act. While contagious diseases legislation had been passed in England in 1864, its application was limited to garrison towns in order to prevent the armed forces as far as possible from contracting venereal disease. In Queensland the Act required women said to be prostitutes who plied their trade within the limits of any place mentioned in the Act, which included the Municipalities of Brisbane, Cooktown, Maryborough, Rockhampton, Borough of North Rockhampton, and Divisions of Toowong, Woolloongabba, Ithaca and Booroodabin, to register their names with the police and submit to periodic medical examinations. If found to be suffering from venereal disease, registered women were detained in a ‘lock hospital’. The records of the Brisbane Court of Petty Sessions, show that attempts to evade the legislation, or escape from the lock hospital, formed a frequent part of court business. The Act was repealed by a new health Act in 1911; however, women continued to be detained under this new legislation into the post-Second World War period.

An attempt to regulate more egregious sexual offences was made under the Criminal Law Amendment Act of 1891, which altered the provisions relating to sexual offences contained in the Offences Against the Person Act of 1865. The Act was prompted by a similar Criminal Law Amendment Act passed in England in 1885, although the two bills differed in several respects. The most important effect of the Act was that the age of consent was raised from twelve to fourteen.

Increasingly in the nineteenth century, there were calls in both the colonies and England for this ad hoc approach to law-making to be altered by unifying the rules established under common law, as well as legislative statutes on crime, into a single criminal code. Victoria attempted to undertake such reforms in the 1880s, but the legal profession opposed the move.

In 1893, the Queensland Premier, Sir Thomas McIlwraith, asked Chief Justice Sir Samuel Griffith to prepare a Draft Code of Criminal Law for the colony. Virtually unassisted, Griffith prepared a formidable document containing seven hundred and thirty-three sections. This draft was adopted with minor revisions as the Queensland Criminal Code, coming into force on the 1^st of January 1901. Queensland was the first Australian state to adopt a criminal code; it would later be used as the template for the criminal codes of other jurisdictions, both in Australia and overseas.

Queensland’s Criminal Code was amended several times during the twentieth century. In 1913 the age of consent under the code was raised from fourteen to seventeen, and the following year the code was amended to allow persons declared to be habitual criminals to be detained indefinitely in reformatory prisons.

Queensland became the first state in Australia to abolish capital punishment when the death penalty was struck off the Criminal Code in 1922. Rape and robbery under arms with wounding had been removed from the list of crimes subject to capital punishment when the Criminal Code was first introduced. Agitation for the abolition of capital punishment had received impetus in 1902 following the trial of suspected horse thieves Patrick and James Kenniff for the murder of a police officer and station manager. The young brothers aroused considerable sympathy, but only James had his death sentence commuted. The case was invoked in support of the amendment during the parliamentary debates in 1922.

The following year Queensland also became the first state to allow women to sit on juries with the passage of the Jury Act Amendment Act of 1923. The Act did not give women full equality with men; eligible women were not automatically included on the jury lists, but had to register their willingness to sit on juries. Only around thirty women were registered to serve by 1942, when the low availability of male jurors prompted some discussion of changes to the laws. In March 1945 it was reported that Nellie Bishop had become the first woman to sit on a Queensland jury; however, the honour actually went to Maud White, who had sat on a jury at the Innisfail Circuit Court twenty years earlier on a case involving the theft of a saddle.

More extensive amendments were made to Queensland’s Criminal Code in 1945, particularly around procedural issues and the punishment of sex offenders.

The only other two states to adopt a code have been Western Australia (1902) and Tasmania (1924).

Court Records

The main records that members of The Prosecution Project are working with are held by the Queensland State Archives. QSA has an excellent online guide to the court records they hold that also provides valuable information on the evolution of Queensland court system.

As our principal focus is on the prosecution of serious crime between the period roughly covering 1860 to 1960, the archival material being used primarily originates from the Supreme Court. With the help of an increasing number of volunteers (see our Become Involved page), we are currently digitising the information contained in Series 6226, Registers of Criminal Depositions Received. These registers provide details such as case number, name of accused, offence, bail allowance, committal date, date and place of trial, judge, verdict and sentence.

From these registers, Prosecution Project researchers are able to select cases for more detailed analysis, and consult various other records, such as Series 4508, Court Transcripts. From this information we are able to establish the wider contexts in which particular crimes occur, and the factors likely to influence prosecution, conviction and sentencing. Long-term trends and changes in the justice system can also be analysed.

The Prosecution Project is also interested in digitising records from the lower tiers of criminal justice. Plans are progressing for the transcription of Series 753, Depositions and Minute Books for the Brisbane Court of Petty Sessions.

Legislation

Moreton Bay Judge Act 1855
Moreton Bay Supreme Court Act 1857
Colonial Laws Validity Act 1865
Larceny Act 1865
Offences Against the Person Act 1865
Sherriff Act of 1875
Criminal Law Amendment Act 1891
Queensland Criminal Code 1899
Children’s Courts Act 1907
Justices Act Amendment Act 1909
Criminal Code Amendment Act 1913
Jury Act Amendment Act 1923
Justices Acts Amendment Act 1941
District Court of Queensland Act 1967

Online Resources

http://legalheritage.sclqld.org.au/snapshot-queensland’s-legal-heritage
(Timeline of legal developments in Queensland)

http://archive.org/stream/cu31924024526968/cu31924024526968_djvu.txt
(Full text of reports for criminal cases heard at the Queensland Supreme Court, 1860-1907)

http://www.archives.qld.gov.au/Researchers/CollectionsDownloads/Documents/BG22Court.pdf
(Guide to court records and overview of Queensland court structure over time)

http://www.austlii.edu.au/au/legis/qld/hist_act/
(Copies of some of the legislation passed in Queensland from 1867 to 1951)