Tasmania became subject to English justice in 1803, when British fears that Napoleonic France might attempt to colonise the island led them to establish it as an alternative penal settlement to New South Wales. As an extension of New South Wales, the new settlement, known as Van Diemen’s Land, inherited the court system that had developed in its parent colony. This system was heavily based upon martial law.
Nevertheless, in Van Diemen’s Land, the administration of criminal justice occurred somewhat differently than in New South Wales. Magistrates and the lower courts were of paramount importance to its administration. A superior court body was not present in Van Diemen’s Land until 1821, when the New South Wales Court of Criminal Jurisdiction sat there as part of its travelling circuit court. Prior to this, more serious criminal matters had to be referred to the authorities in Sydney. The difficulties associated with the prosecution of serious offences and the lack of a circuit court led to two developments noted by Commissioner John Bigge in his report on the state of the colonies in 1823. First, there was a lack of prosecutions for indictable offences being heard in Sydney, the journey involved dissuading some free settlers from pursuing criminal matters. Second, and relatedly, justices were dealing with criminal cases that were not in their jurisdiction.
For convicts, it seems justices of the peace were punishing all offences short of murder. In deference to their status, free settlers were more likely to be sent to Sydney for trial. Ironically, this meant that while convicts convicted of livestock-stealing or assaults were usually punished by a flogging, free persons charged with the same offences were placed in jeopardy of their lives due to the execution powers of the Court of Criminal Jurisdiction. Punishments for the public order offences adjudicated by the magistrates were inflicted on both free and convict alike: whippings or the wearing of heavy spiked iron collar was prescribed for abusive language and similar behaviour. The magistracy was an unpaid position in England, but by the second decade of the nineteenth century in Van Diemen’s Land justices of the peace were being rewarded by government rations and special assignments of convict servants.
In January 1821, John Wylde, Judge of the Court of Criminal Jurisdiction, and Barron Field, Judge of the Supreme Court of Civil Judicature arrived in Van Diemen’s Land to hold special sittings of their respective courts for the first time in the settlement. The first calendar of crimes placed before the circuit court was heavy, perhaps intentionally so, to reinforce the need for such arrangements in the settlement. The guilt of defendants brought to the Court of Criminal Jurisdiction was determined not by a jury, but by a panel of six military officers.
The punishments meted out at the first sittings indicate community attitudes towards different crimes at this time: James Rockfort, found guilty of the attempted rape of an 11-year-old girl, was sentenced to 12 months on the Coal River; James Haye, guilty of perjury, to three years on the Coal River; John Redmond and Lawrence Gorman, guilty of stealing eight half-hides of green leather, received five years transportation; Edward Shortland, for stealing cloth valued at ten pounds, seven years hard labour at Newcastle; and Henry Dutton, who was charged with murder but found guilty of manslaughter after attributing the offence to having never recovered from a ‘brain fever’ he contracted on the coast of Africa some years before, received five years on the Coal River (Hobart Town Gazette and Van Diemen’s Land Advertiser, 27 January 1821, 1).
By June 1821, the Court of Criminal Jurisdiction on circuit in Van Diemen’s Land had tried 96 defendants – 28 free persons and 68 convicts – of whom only 20 were acquitted (Hobart Town Gazette and Van Diemen’s Land Advertiser, 16 June 1821, 2). The Court had been convened not only at Hobart Town, but at the settlements on the Derwent and at Port Dalrymple. Sentence of death had been passed on thirteen offenders at the Port Dalrymple sittings in May, all of whom were absconders who had subsequently committed other felonies (Hobart Town Gazette and Van Diemen’s Land Advertiser, 2 June 1821, 2). This splurge of executions was intended to terrorise and control the local populace until the circuit court’s return. However, while the Vandemonians were pleased finally to have indictable offences tried locally before a superior court, the ambition for an independent judicial establishment permanently located on the island remained. In New South Wales too, agitation was growing for judicial reform and a new style of court.
In 1819 a group of New South Wales colonists directed a petition to the British government outlining their grievances, one of which was their desire to see reform in the administration of criminal justice and the introduction of trial by jury. Unsurprisingly, emancipated convicts, as well as poorer settlers, were the leading voices in these calls for change. Commissioner Bigge was despatched to investigate colonial conditions, particularly in regards to their judicial arrangements. Bigge’s personal views, as well as the prevailing politics in England at the time, made him unsympathetic to the emancipists’ agenda. The reforms he advocated fell far short of their demands, but did result in legislation that introduced a new court system in both New South Wales and Van Diemen’s Land.
The 1823 Act for the Administration of Justice in New South Wales and Van Diemen’s Land established Supreme Courts in both jurisdictions, Bigge asserting that the southern settlement was in dire need of its own higher court. Tasmania is privileged to claim the oldest Supreme Court in Australia, having enacted its court seven days before New South Wales. The Supreme Court sat at the top of a three-tier structure that resembled the English system with the Court of Quarter Sessions at the intermediate level and the Court of Petty Sessions at the base. The Supreme Court enjoyed wide jurisdiction, imbued with authority not only over criminal matters, but in civil and equity matters.
The Royal Charter of Justice was read in the market place in Hobart Town on 7 May 1824. Three days later, the Charter was read out at the first sitting of the new court, and the oath of office was administered to Attorney-General Joseph Gellibrand and to William Sorell, first Registrar of the Supreme Court. In his opening address, Chief Justice John Pedder acknowledged some of the problems that had beset the administration of criminal justice in Van Diemen’s Land, and hoped these would now be overcome (Hobart Town Gazette and Van Diemen’s Land Advertiser, 14 May 1824, 2).
The first defendant to be tried before the new Supreme Court was William Tibbs, who had arrived in the colony just a few months previously. He was charged with having shot and killed a ‘black man’ named John Jackson on 17 January 1824. In an example of the quick nature of justice in the nineteenth century, the jury retired for only a few minutes before returning with a verdict. Tibbs was found guilty of manslaughter (Hobart Town Gazette and Van Diemen’s Land Advertiser, 28 May 1824, 2).
The operation of the Supreme Court remained problematic. In addition to sitting regularly in Hobart, the Court was empowered to organise Circuit sittings in other districts. However, between 1825, when Van Diemen’s Land achieved independence from New South Wales, and 1830 there were only three assizes in Launceston, the main northern settlement. In Hobart delays were such that many defendants spent more time in gaol awaiting trial than the actual period of sentences if they were convicted (Colonial Times, 22 January 1830, 2). Justice was also bloody, with 203 criminals sentenced to be hanged between 1826 and 1842. Some also faced additional penalties, such as gibbetting or dissection. Mary McLauchlan, the first woman executed in Van Diemen’s Land, was sentenced both to death and dissection in 1830, having being convicted of infanticide after giving birth while imprisoned at the Female Factory.
One of the most important evolutions in the colonial Supreme Court process involved the establishment of criminal trials by jury, rather than by a military panel. Limited capacity for civilian jury trials was introduced in Van Diemen’s Land in 1830. The Jury Act 1830 directed that civilian juries could try issues of fact in common law actions, although this was at the discretion of the judge. The 1834 Jury Act established civilian juries in Supreme Court civil cases, replacing the previous process where a Supreme Court judge heard a case with two assessors. Further, there were some concessions towards civilian juries in criminal cases. Military juries could be replaced by twelve civilian jurors as triers of fact in cases where members of the Executive or the defence forces were either the victims or otherwise interested parties in the prosecution. Military juries were finally abolished in 1841, and the rule of law and due process with regards to criminal trials fully realised with the enactment of the 1840 Jury Act.
In none of their Jury Acts did Van Diemen’s Land make provision for a grand jury system. In England, the grand jury was empowered to determine whether there was sufficient evidence to launch a prosecution against a potential defendant. Instead, the authority over indictments and the discretionary authority over the prosecution process remained with the Attorneys General and the Crown Prosecutors. In the 1830s Attorney General Alfred Stephen, expressed concerns that this process left the operation of the criminal law vulnerable to undesirable influences and potential individual bias, recommending the introduction of a grand jury process. These warnings were not acted upon.
Chief Justice Pedder sat on the Supreme Court bench alone until it was decided to appoint a second judge in 1830. Alexander Baxter accepted the job, but when he arrived in 1831 it was clear that recent family difficulties had left him anxious and addicted to drink. He was immediately placed on leave, and shortly thereafter died before officially taking his seat on the bench. Algernon Montagu thus became the first puisne judge of the Supreme Court in 1833.
Both Pedder and Montagu’s judicial tenure was marred by a series of disputes with the Legislative Council. The government was displeased by the decision taken by Pedder in 1847 that the Supreme Court had no jurisdiction to hear an action brought by one of his creditors against Montagu, who was suffering from financial difficulties. Further discord erupted soon after when Pedder and Montagu declared a local dog tax invalid in the case of Symonds v Morgan, because the Act should have stated a specific purpose or entity to which the revenue raised would be directed. This ruling cast doubt on all the colony’s existing revenue legislation. In the ensuing debacle, Montagu was removed from office by the order of the Lieutenant-Governor.
In 1854, with the health of Chief Justice Pedder failing, Lieutenant-Governor Sir William Denison resolved that the attorney-general, Sir Valentine Fleming, should succeed him. Fleming had been a staunch supporter of the government during its various altercations with the judiciary. His appointment, officially confirmed in January 1855, met with some criticism, particularly by then Supreme Court puisne judge Thomas Horne, who believed he should have been awarded the post by virtue of seniority.
Sir Francis Villeneuve Smith succeeded Fleming as Chief Justice in 1870. Smith displayed an irascible temper both in and out of court. He often engaged in heated exchanges with counsel or witness, and himself became engaged in a number of civil actions, including against members of his own family. In 1877, Smith caused a controversy by criticising the Executive Council for releasing prisoner Louisa Hunt after she had only served eighteen months of a seven-year sentence for conspiring with her son to set fire to her house to claim the insurance money. Smith viewed this act as a wrongful usurpation of the powers of the judiciary; he was rebuked and forced to retract his comments.
It was legally impossible to appoint locally-trained judges in Tasmania until legislation was passed allowing them to do so in 1880. In 1885, Robert William Giblin became the first Tasmania-born and locally trained lawyer to be appointed to the Supreme Court bench.
A third judge was not added to the bench until 1887, when an Act to make provision for the Appointment of an additional Judge of the Supreme Court, and for other purposes was passed. The main purpose of the addition of the third judge was to make the Supreme Court more equitable as a Court of Appeal. The Full Court, that is the full bench of all judges appointed to the Supreme Court, was empowered to hear appeals of decisions rendered by the lower courts or even the Supreme Court itself; however, in the absence of a third judge, this was likely to result in a stalemate if the original trial judge refused to alter his original decision.
The type of appeals heard by the Supreme Court initially related simply to points of interpretation of law, not to the jury’s findings about the facts of the case. The Court of Appeal was empowered to hear matters of fact as well as law in Tasmania in 1924.
The Supreme Court was initially located in a building on the corner of Murray and Macquarie Streets. The criminal jurisdiction of the court was relocated in 1860 to the junction of Brisbane and Campbell Streets, where the Holy Trinity Church was converted into a court building. It was thus placed conveniently adjacent to H M Gaol Hobart, which operated there from 1821 to the early 1960s. Civil cases were heard at a different court building in Macquarie Street. In 1980 the two courts were again unified upon the opening of a new Supreme Court complex at Salamanca Place.
From the 1850s the Supreme Court also sat with greater regularity at Launceston. The Launceston Circuit Court has occupied its present site in Cameron Street since 1929. During the nineteenth century circuit sittings also commenced on the north west coast. Today, Supreme Court sittings continue to occur in Burnie, at the Alexander Street courthouse.
The Court of Petty Sessions continued to form the lowest tier of criminal justice in Van Diemen’s Land. In 1821 there were just eight magistrates on the island to adjudicate these lower court proceedings, four at Hobart Town and four at Port Dalrymple.
Due to the scattered population and distances involved, the court system was heavily reliant on these magistrates. The system of honorary justices was under pressure. Because of the heavy obligations owing to the position, many magistrates did not have the necessary time to spend away from their own land. In some cases, justices used their position arbitrarily, meting out unfair punishment to certain convicts. Stocks were regularly imposed for public order offences in Van Diemen’s Land in the 1830s.
Consequently, Governor George Arthur introduced a system of paid police magistracies in 1827. Arthur divided the island into nine police districts in the charge of a paid magistrate. These magistrates were military men, appointed by the Governor, who owed their allegiance to the government. The police magistrates were more influential than the often ‘brutal and incompetent’ honorary justices. Although there were reports of police magistrates overstretching their own authority, these incidents could be checked by the Chief Police Magistrate.
Some people in the colony, including Chief Justice Pedder, questioned these military appointments as a violation of the principles of law. Upon application to the Secretary of State in London, however, Arthur’s decision to employ military men was upheld due to the ‘evil’ nature of the populace. By 1837, there were fifteen police magistrates, who were still assisted by the honorary magistrates.
Up until 1899, and uniquely in Australia by this time, the Police Magistrates were also in charge of supervising the day-to-day work of the police. After this, such duties were taken over by the Commissioner of Police. The Court of Petty Sessions continued to try low-level criminal offences until 1987, when this function was taken over by the Magistrates Court.
In addition to establishing a Supreme Court, the 1823 Act introduced the Courts of Quarter Sessions to try indictable crimes of a non-capital nature. While the 1823 Act granted the same authority to the colonial quarter session courts as that of the English Quarter Sessions courts, it was unclear whether the Act intended to introduce civilian jury trials into the colonial courts. In Van Diemen’s Land, Chief Judge Pedder refused to entertain the notion that an ex-convict population should determine criminal matters. He resolved that until the Imperial Parliament offered further guidance, the Courts of Quarter Sessions in Van Diemen’s Land would refrain from hearing criminal cases against free settlers, but would deliver summary justice to convicts. Unfortunately, this increased the workload and pressure on the Supreme Court of Van Diemen’s Land; gaols were full of free settlers awaiting trial for minor assaults that could not be heard at the Petty Sessions. The problems were only resolved once the Legislative Council passed an act re-establishing the jurisdiction of the Quarter Sessions court in 1830.
The Courts of Quarter Sessions had a critical role in the early legal system, particularly between 1824 and 1850. Firstly, its jurisdiction was enlarged beyond the English Quarter Sessions court process in order to try convicts summarily; that is, by a judge alone, without either a military or civilian jury. Consequently, it became an important court in the disposal of many criminal offences. The court was also critical in its administrative capacity, taking on local government functions, which English local government entities would normally oversee, such as the maintenance of public roads.
The intermediate court level, however, proved problematic. Given that Tasmania was a smaller jurisdiction than the northern colonies, it was more efficient for the Supreme Court to try all indictable offences, while an expanded lower court dealt with misdemeanours summarily. Tasmania eventually abolished its intermediate courts, and today remains the only state without an intermediate court.
Under the Youthful Offenders Destitute and Neglected Children Act 1905, children in Tasmania were tried in private, and any records of their trials were to be kept separate from those of the generality of offenders, effectively establishing a Children’s Court. From 2010, the Children’s Division formed a special section of the Magistrates Court of Tasmania.
Under the Australian Courts Act 1828, all the laws and statutes in force in England at 28 July 1828 were to be considered law in Van Diemen’s Land in so far as they were applicable. Legislation passed afterwards in England would carry no weight, as it would be up to the new colony to decide what additional laws it felt it was necessary to pass.
One of the first Acts relevant to criminal law passed by the colonial government was an 1826 Act for the summary punishment of disorderly conduct in female offenders, as the female convicts transported to the island were said to be particularly intractable. Much of the laws relating to crime introduced in Van Diemen’s Land during this era related to the regulation of convicts, such as the 1830 Act to facilitated the prosecution of servants for larceny and embezzlement and of persons aiding the escape of felons or offenders under sentence of transportation.
Other legislation simply replicated Acts that had recently been passed in England. In 1837, Parliament passed An Act for extending to this Colony sundry statutes passed for the amendment of the criminal law. The legislation abolished the use of gibbetting as a form of punishment, removed housebreaking, letter-stealing and sacrilege from the list of capital crimes, and outlawed the organisation and advertising of lotteries. Most importantly for the history of the criminal trial, the Act conferred on accused persons the right to be fully defended by counsel at trial, provided they could afford to hire a lawyer. Previously, defence counsel could only be retained in relation to certain crimes, and could only speak for their client when it came to matters of legal process and the interpretation of the law.
Legislative statutes about the administration of criminal justice continued to be passed in a piecemeal fashion until 1873, when the Criminal Law Procedure Act set out the main provisions for Tasmania’s criminal process.
An even more significant consolidation occurred in 1924, when the entirety of Tasmania’s criminal law was united under a Criminal Code. Queensland and Western Australia had previously enacted such Codes in 1899 and 1902 respectively; Tasmania drew some inspiration from the Queensland Code, but not to the same extent as other jurisdictions.
The Criminal Code has since undergone several additions and amendments. In 1934, for example, the Code was changed to include infanticide as a crime distinct from murder. Other aspects of the law continued to be directed by other statutes. An amendment initiated by Chief Justice Sir Herbert Nicholls in 1936 to allow majority verdicts in criminal cases, for instance, was passed under the Jury Act.
Tasmania remains only one of three Australian jurisdictions with a criminal code.
The Tasmanian Archive and Heritage Collection holds the main Tasmanian court records being investigated by The Prosecution Project.
An Act to institute Courts of General and Quarter Sessions and to extend the authority thereof and of justices of the peace in certain cases 1830An Act For The Summary Punishment Of Disorderly Conduct In Female Offenders In The Service Of The Government Or Of Any Inhabitants Of Van Diemen’s Land And For Vesting In The Principal Superintendent Of Convicts The Like Powers And Authorities As Are Given To The Several Justices Of The Peace 1830
Act to facilitated the prosecution of servants for larceny and embezzlement and of persons aiding the escape of felons or offenders under sentence of transportation 1830
Jury Act 1830
Jury Act 1834
An Act for extending to this Colony sundry statutes passed for the amendment of the criminal law 1837
Jury Act 1840
Criminal Law Procedure Act 1873
An Act to amend the law as to the qualification of the judges of the Supreme Court 1880
Act to make provision for the Appointment of an additional Judge of the Supreme Court, and for other purposes 1887
Youthful Offenders Destitute and Neglected Children Act 1905
Criminal Code Act 1924
Criminal Code Act 1934
Jury Act 1936
Magistrates Act 1987
Records of decisions in superior courts of Tasmania, 1824-1924
Tasmanian Law Reports, 1897-1940
Legislation passed in Tasmania since 1826
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