South Australia’s justice system developed differently to those of other places in Australia. Plans for the administration of the law in South Australia were carefully organised, taking inspiration from the theories of Edward Gibbon Wakefield. Wakefield, who had himself been imprisoned for the crime of abduction in 1827, believed encouraging the emigration of labouring families would provide population relief to England while producing a prosperous, self-regulating and morally-upright colony.
In other colonies the judicial system gradually evolved to include a Supreme Court as the highest tier of criminal and civil justice, save recourse to the Privy Council in England. In South Australia, the Supreme Court existed almost from the introduction of British colonisation in December 1836. The first judge, Sir John Jeffcott, had been appointed Chief Justice to the court before the first party of colonists set out on their voyage. Like Wakefield, Jeffcott also had personal experience of the criminal justice system. In 1834, he had been charged with murder at the Exeter Assizes after killing another man in a duel. To avoid a scandal, however, the trial was not proceeded with.
Five days after the colony was proclaimed on 28 December 1836, the Supreme Court of South Australia was established by ordinance on 2 January 1837. It was invested with all the common law, equitable and probate jurisdictions of the Westminster courts. This gave it considerable power as a dispenser of legal justice for the 546 British citizens then resident in the colony.
The first criminal sessions of the Supreme Court were held under Justice Jeffcott on 13 May 1837. Jeffcott took the opportunity to congratulate his fellow colonists on their judicial arrangements:
You are aware, gentlemen, that in the neighbouring colonies it has been deemed inexpedient to concede to the inhabitants of them, the full right of Trial by Jury. It is not my duty, gentlemen, to question the policy of withholding from British subjects the benefits of this national institution, or to argue the reason which may render such restriction expedient. I am happy, however, gentlemen, to say, that no reasons exist to deprive the free inhabitants of South Australia from the full advantage of this palladium of British liberty, which I am most anxious for them to enjoy. (The Colonist, 22 June 1837, 7)
The foreman of the jury on this occasion was Colonel William Light. Towards the end of 1837, Jeffcott received permission to travel to Van Diemen’s Land to consult with other judges about some difficult legal questions that had arisen. On 12 December he was drowned when the whaleboat he was on capsized at the mouth of the River Murray.
Henry Jickling was appointed acting judge following Jeffcott’s demise. An unassuming man, Jickling nevertheless instituted two significant steps during his tenure. Firstly, he oversaw the organisation of the Supreme Court’s functions in relation to its testamentary causes jurisdiction, that is its role in administrating wills and estates where persons died intestate. Secondly, he admitted the colony’s first legal practitioners to the bar on 6 March 1838.
In March 1839, Charles Cooper arrived to formally fill the spot of Chief Justice. Cooper was not well-liked by Adelaide’s popular press. He was derided for the difficulty he experienced restraining boisterous lawyers, his trite homilies to juries regarding religious duties and the length of time he often took in reaching decisions. He was however a significant figure intellectually and his judgments, especially those concerning Indigenous defendants, have attracted increasing interest more recently.
A second judge, George Crawford, was appointed to assist Cooper in hearing cases in 1849. Whereas Cooper’s courtroom was casual and lax, Crawford insisted on the dignity of his office. He was the first in South Australia to wear a judicial wig, and was quick to reprimand unpunctual barristers or sleepy jurymen. Crawford died in September 1852; his last act in office was to send to the Executive Council his notes on the trial of three Aboriginals who had been sentenced to death for the murder of another, Warrin Yerriman, in a tribal fight. The trial raised the question of whether the Supreme Court possessed jurisdiction in cases involving offences between Aboriginals. The issue of the colony’s jurisdiction continued to be raised in the popular press during the 1850s; however, following a particularly notorious murder of a European woman and her two children in 1861 public support for holding Aboriginal offenders amenable to English law increased.
Crawford’s successor as puisne justice was Benjamin Boothby, the only South Australian judge ever to be removed from office. Always an unpopular figure, in 1857 Boothby attracted public outcry due to his usurpation of the jury’s role as sole arbiter of the facts of a case. The scandal actually involved two related trials. Ann Mara, a domestic servant, had accused her employer Dr William Popham of rape. Popham, a married surgeon residing in Glenelg, was a person of influence and outwardly respectable. Under the force of such factors, Mara had been charged with perjury over her deposition charging Popham with rape during the committal hearing at the Police Court.
Boothby dictated that the trial of Ann Mara for perjury proceed first. At the conclusion of the evidence, he summed up in favour of the prosecution, suggesting to the jury a number of reasons why a woman might bring a false charge of rape. The jury and public did not agree with his sentiments. When a not guilty verdict was returned, the public gallery erupted in cheers. Boothby thereupon charged two of the gallery members with contempt of court. The following day the trial against Popham commenced; however, at the conclusion of Mara’s testimony, Boothby halted proceedings on the grounds of lack of evidence. As his summation showed that this was based on no more than his opinion that Mara was lying, Boothby earned much recrimination, with letters to the editor and even public meetings held in which Boothby was described as an enemy of the jury system.
Boothby nevertheless continued in office, although he was passed over for the Chief Justiceship upon Cooper’s retirement in 1861. The position instead went to Richard Hanson. Boothby initially refused to recognise the validity of Hanson’s appointment, claiming only a British-trained barrister could be a judge of the Supreme Court. Even after the passage by the British parliament of the Colonial Laws Validity Act in 1865, Boothby continually impugned the right of the South Australian parliament to legislate on different issues. In May 1866, the situation came to a head when Boothby refused to acknowledge the authority of the attorney-general and quashed all informations for serious criminal offences brought before him in that officer’s name. After protracted wrangling, Boothby was officially removed from office in July 1867.
A third judge, Edward Gwynne, had been added to the Supreme Court bench in 1859. Gwynne practised as an attorney in South Australia from 1838, and had appeared for the defence in the Mara trial and as prosecutor against Popham. He presided over the first circuit sittings of the Supreme Court at Robe and Mount Gambier in February 1862.
In 1875 it was decided that circuit sittings would be held at Palmerston, now Darwin. Justice William Wearing, who had been appointed to the Supreme Court bench in 1867, undertook the long journey to the top of the Northern Territory by travelling by sea around the eastern coast of Australia. The sessions saw the trial of Ah Kim, a Chinese cook who had originally been committed on theft charges. These had since been dropped, however, and he was tried instead for committing an ‘unnatural offence’ with another prisoner while at the gaol lockup. Ah Kim’s legal counsel requested and was granted a trial by a mixed jury, that is one composed of six ordinary members of the jury list and six of the defendant’s own countrymen. Possibly the only use of the mixed jury in the Northern Territory, it nevertheless resulted in Ah Kim’s conviction. On the return journey to Adelaide, Justice Wearing was drowned when his ship the Gothenburg was wrecked on the Great Barrier Reef.
The first locally-trained lawyer to be made a judge was Randolph Isham Stow, appointed 1875. Stow had endured a number of skirmishes with Justice Benjamin Boothby, who challenged his right to appear as a Q.C. and once threatened to commit him for contempt of court. Another locally-trained man, Samuel James Way, was appointed Hanson’s successor as Chief Justice in 1876. Retaining the position until his death in 1916, Way has the distinction of being Australia’s longest-serving Chief Justice.
For nineteen years the court was dominated not only by Way, but also by the same two puisne judges: James Boucaut, appointed 1878; and William Bundey, appointed 1884. The three judges enjoyed the longest period of conjoint service in the history of the South Australia Supreme Court. During the economic depression of the 1890s it was suggested that one of the judges should be removed to save funds; but no such action was ever taken.
In 1904 Justice Sir John Gordon replaced retiring Justice Bundey and in 1905 Justice Robert Homburg took over from Justice Boucaut. These appointments were controversial as both men had been politicians rather than legal practitioners for many years. Homburg in particular was said to be lacking in knowledge of court procedure. In 1912 Homburg was succeeded by Sir George Murray, who later presided as Chief Justice from 1917 until 1942. Sir Thomas Napier, a puisne judge from 1924, received the Chief Justiceship following Murray. Retiring from office in 1967, Napier holds the state record for judicial tenure.
The process by which defendants were committed to trial at the Supreme Court initially differed in South Australia to the other colonies. While the gradual development of legal processes elsewhere saw more modified versions of the English judicial system, South Australia followed England more closely, including in the use of the grand jury system. From the opening of the Supreme Court, for an individual to be committed for trial at least twelve members of a grand jury of up to twenty-three people had to determine there was enough evidence for a full hearing of the case. Police magistrates replaced the role of the grand jury in 1852; England would follow suit in 1933.
During their operation, grand juries in South Australia not only determined whether defendants should proceed to trial, but also made presentments to the judiciary about the issues raised by the cases before them. Several of these presentments addressed the tense relations between the colonists and Aborigines. In September 1849, a grand jury made a presentment calling for a greater police presence in districts that had witnessed violence between settlers and local Aborigines.
The most important presentment made by a grand jury occurred in May 1851. The jury had been asked to hear evidence in relation to two cases of violence where several Aboriginal men had killed other Aborigines. Justice Cooper tried to discourage the jury from doing anything more than executing their basic function of who to put to trial. The jury nevertheless read out a long presentment in open court that urged the government against interfering in Aboriginal customary law when it came to cases among Aborigines themselves. The two cases nevertheless proceeded to trial. In one the defendants were acquitted; in the other, involving three Aborigines from Yorke Peninsula, the defendants were found guilty but later pardoned due to popular support for the position taken by the grand jury.
Originally the Governor in Executive Council was the sole local avenue of appeal from verdicts delivered by the Supreme Court judiciary. The Privy Council in England also acted as a higher body for appeals, but was rarely called upon to exercise this function. From 1878 the Full Court of the Supreme Court, that is the three judges of the court sitting together, was recognised as the main appellate body in the colony. They heard appeals only on disputed points of law. Right to appeal conviction and sentence on the basis of the evidence itself was granted by the Criminal Appeals Act 1924.
The Supreme Court Act 1878 also saw signicant revisions to the previous 1853 legislation governing the jurisdiction and procedures of the court; major revisions were again made by the Supreme Court Act 1935.
Historically in South Australia the lowest tier of criminal justice comprised the Courts of Petty Sessions, also known as the Police Court or Magistrates Court. The magistrates of these courts would deal with minor matters, such as public drunkenness or traffic offences, through summary jurisdiction, that is by a non-jury hearing. After the abolition of grand juries in 1852, these lower courts were also responsible for deciding whether there was enough evidence for more serious criminal cases to proceed to trial at the Supreme Court.
The Courts of Petty Sessions were enacted by statute on 2 January 1837. The first court appears to have been held at Holdfast Bay on 7 January 1837, when two Justices of the Peace sat to resolve a quarrel between a master and servant. The first purpose-built Police Court was not erected in Adelaide until 1967, when it was given premises adjoining the Supreme Court building on King William Street. The Magistrates Court replaced the Courts of Petty Sessions in 1991.
South Australia established an intermediate level of court later than most other Australian jurisdictions. Criminal matters were heard either at the Court of Petty Sessions or the Supreme Court until 1969, when the District Court was introduced by the Local Courts Act Amendment Act.
South Australia was the first Australian jurisdiction to formally establish a separate children’s court. The Children’s Court was established under the provisions of the State Children’s Act 1895. Currently, criminal offending by juveniles is tried before the Youth Court of South Australia, which was established by the Youth Court Act 1993.
All the laws and statutes in force in England on 28 December 1836, the date of South Australia’s settlement, operated in the colony from this time. It was thereafter up to the government of South Australia to adopt legislation subsequently passed in England, and pass its own laws to deal with unique colonial conditions.
Much of the colonial legislation related to criminal matters essentially implemented recent British statutes. In 1845, for instance, the Crimes Act followed England’s lead in repealing the use of the death penalty in relation to a number of minor offences, particularly various forms of malicious damage to property. Following an international panic about juvenile prostitution and white slavery in 1885, South Australia was the first colony to emulate England in raising the age of consent from thirteen to sixteen years of age, and to make it an offence to procure a female to become a common prostitute or enter a brothel.
Like today, criminal law also had to keep apace of recent inventions and advancements. In 1854 it was thus made an offence to use the compound chloroform, first synthesised in 1831 but not produced commercially until the 1850s, to stupefy or overpower a person in order to effect a felony. Similarly, the 1927 Criminal Law Act made reckless driving of a motor vehicle, and negligent driving causing death, a misdemeanour liable to up to seven years imprisonment or a £250 fine.
South Australia also witnessed some innovative legislation in relation to court procedures. Perhaps the most significant was the introduction of the Accused Persons Evidence Act 1882. This legislation allowed defendants to act as a witness in their own defence for the first time anywhere in the British Empire; England would not introduce similar legislation until 1898.
Previously it was believed that allowing defendants to testify would merely incite them to perjury; defendants had therefore only been able to read unsworn statements in court on which they could not be cross-examined. The first defendant to give evidence as a sworn witness was Richard Newell, a mason charged with assault on a police constable. Newell gave evidence claiming he had never hit the constable, but had interceded between him and a friend who had been having a row. Others, including his wife, who previously would also have been prevented from testifying, supported this story. Newell was acquitted.
An unsuccessful attempt was made in 1903 to introduce a criminal code to consolidate the law in relation to criminal offending in South Australia. However, South Australia’s criminal law continues to be dictated by statutory legislation and common law.
Original documents related to South Australia’s courts and criminal history are held by the State Records of South Australia. The Prosecution Project also sources trial information from the South Australia Police Gazettes, which are available to view at the State Library of South Australia.
Supreme Court Act 1837
Court of Sessions Act 1837
Crimes Act 1845
Supreme Court Act 1849
Grand Juries Act 1852
Supreme Court Act 1853
Crimes Act 1854
Supreme Court Act 1878
Accused Persons Evidence Act 1882
Criminal Law Act 1885
State Children’s Act 1895
Criminal Appeals Act 1924
Criminal Law Act 1927
Supreme Court Act 1935
Local Courts Act Amendment Act 1969
Magistrates Court Act 1991
Youth Court Act 1993
South Australia Law Reports from 1863
Legislation passed in South Australia since 1837
Castles, Alex C. An Australian Legal History. Sydney: The Law Book Company Limited, 1982.
Castles, Alex, and Michael C Harris. Lawmakers and Wayward Whigs: Government and Law in South Australia 1836-1986. Adelaide: Wakefield Press. 1987
Crawford, James and Brian Opeskin. Australian Courts of Law. Melbourne: Oxford University Press, 2004.
Emerson, John. First Among Equals: Chief Justices of South Australia Since Federation. Adelaide: University of Adelaide Barr Smith Press, 2006.
Emerson, John. History of the Independent Bar of South Australia. Adelaide: University of Adelaide Barr Smith Press, 2006.
Foster, Robert, and Amanda Nettelbeck. 2012. Out of the Silence: The History and Memory of South Australia’s Frontier Wars. Kent Town, S. Aust: Wakefield Press.
Hague, R. M. Hague’s History of the law in South Australia, 1837-1867. Adelaide: Barr Smith Press, University of Adelaide; Estate of Ralph Meyrick Hague, 2005.
Kercher, Bruce. An Unruly Child: A History of Law in Australia. St Leonards: Allen & Unwin, 1995.
Parkinson, Patrick. Tradition and Change in Australian Law. Fourth edition. Sydney: Thomson Reuters, 2010.
Pope, Alan. One Law for All? : Aboriginal People and Criminal Law in Early South Australia. Canberra : Aboriginal Studies Press, 2011.
Taylor, Greg. A Great and Glorious Reformation: Six Early South Australian Legal Innovations. Kent Town, South Australia: Wakefield Press, 2005.
Ward, Damen. ‘“Savage Customs and Civilised Laws” : British Attitudes to Legal Pluralism in Australia, C. 1830-48’. London Papers in Australian Studies ; no.10. London: Menzies Centre for Australian Studies, 2004.