Western Australian Courts – The Prosecution Project

Western Australia

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

Early Justice

The rule of English law was proclaimed in Western Australia upon the landing of Captain James Stirling at Fremantle on 18 June 1829. One of Stirling’s first acts as Lieutenant-Governor was to write to the British Parliament on 25 August 1829 to urge provision be made for the administration of justice in the new Swan River Colony. Before he had time to receive a response, disorder within the settlement prompted Stirling to appoint fourteen police constables and eight Justices of the Peace on 9 December 1829. Only two of these justices had legal training.

Stirling was quickly invested by the Colonial Office with the authority to establish a court system, but was urged to do so with the utmost simplicity and economy. It was made clear that the British authorities were unwilling to undertake the expense of sending properly qualified lawyers or judges to the new colony, and that the courts would have to be self-funded entirely by the fees they levied. From 1830 criminal matters in Western Australia were determined either at the Courts of Petty Sessions, which oversaw minor offences, or the Courts of Quarter Sessions, which dealt with more serious crimes.

In 1832 the Court of Quarter Sessions Act officially conferred the power for these courts to determine all felonies and misdemeanours, whether capital or otherwise, committed within the Colony or its dependencies. Unlike the Quarter Sessions in England, the Western Australian Quarter Sessions were empowered to hear special matters such as forgery and perjury, and could be called more regularly than the quarterly schedule from which the court’s name derived. The Court was held before two Justices, the senior of which was known as the Chairman; however, three Justices were required to hear capital cases.

From their inception the Quarter Sessions sat at both Fremantle and Perth, with special sittings sometimes proclaimed in centres like Albany and Bunbury. The Perth Quarter Sessions were heard for a number of years at the Anglican church on the corner of Hay and Irwin Streets, the location of the Central Law Courts and District Court today. By December 1836 purpose-built premises were completed off Barrack Street. Now the oldest extant building in Perth, it houses the Old Court House Law Museum.

The Courts of Quarter Sessions quickly became so busy that they seldom adjourned before 10pm, sometimes sitting as late as 3am. According to some contemporaries, the legal training of those engaged in court business was often inadequate, their knowledge of case law hindered by a lack of recent books and material. In addition to the burdens placed upon the judiciary by the number of cases appearing before them, by the 1850s the matters brought to the courts were increasingly complex. The jurisdiction and powers of both the Civil Court and the Court of Quarter Sessions was queried, leading to calls for a Supreme Court to discharge matters of civil, criminal and equitable jurisdiction.

Supreme Court

Although Western Australia did not become self-governing until 1889, the Supreme Court of Western Australia was established on 18 June 1861, when the Supreme Court Ordinance received royal assent, investing it with the same jurisdiction as the Courts of Westminster enjoyed in England. The new court was also granted extensive probate and ecclesiastical jurisdiction, with jurisdiction over matrimonial causes (i.e. divorces) added in 1863. The Ordinance also made provision for granting ‘barristers, solicitors, attorneys and proctors’ the right to practice law in Western Australia. The Supreme Court was initially presided over by only one judge, who was given the title of ‘Chief Justice of Western Australia’.

The first Chief Justice of Western Australia was Sir Archibald Paull Burt. Burt was to become an influential figure in the colony’s development, advising on constitutional matters and proposed legislation. In 1872 Burt’s administration of the court was questioned when he sentenced Lockier Clere Burges, a well-known northern squatter, to five years penal servitude for the manslaughter of an Aboriginal. Although Burt’s handling of the case was ruled to have been beyond reproach, the Secretary of State for Colonies reduced the sentence to twelve months. Burt’s son Septimus, later Attorney General of Western Australia, regularly appeared on cases before his father during his judgeship. Burt conducted the first sitting of the Supreme Court on 3 July 1861.

Figure 1. Sir Archibald Paull Burt. State Library of Western Australia, b2787670, permission needed.

The first case tried at the Supreme Court was against Robert Thomas Palin, a ticket-of-leave convict, who was charged with having burglariously entered the dwelling-house of Samuel Harding and committed an assault under force of arms. Like many accused in the nineteenth century, Palin was undefended. The main evidence came from Mrs Susan Harding, who testified that she had woken to find Palin leaning over her with a pistol whereupon he issued the standard threat of ‘Your money or your life’. Property belonging to the Hardings was found in Palin’s possession. Palin’s defence was that a fellow former convict named Cochran, who had had a grudge against him since their time at the Fremantle Convict Establishment, had planted the property on him. After a half hour’s retirement the jury returned a verdict of guilty and the penalty of death was passed. The local press was gently critical of this sentence, pointing out that in the United Kingdom capital punishment was only imposed in burglary cases when a death resulted (The Inquirer and Commercial News, 10 July 1861, 2). Nevertheless, Palin was executed six days after his trial (The Perth Gazette and Independent Journal of Politics and News, 12 July 1861, 2).

During its first years the Supreme Court occupied premises in the Police Court and Gaol building in Beaufort street, Perth. In 1863, it returned to the old Quarter Sessions courthouse in the Stirling Gardens off Barrack Street. The leaky roof meant that Chief Justice Burt sometimes had to hold an umbrella above his head while adjudicating cases. In November 1879 the court was moved to the nearby old Commissariat Store. However, as this building was still judged inadequate, work began in the 1890s on a new courthouse adjacent to the original 1836 premises. Completed in 1903, this structure remains the principal seat of the Supreme Court of Western Australia. From 1890 a law library was housed in the Supreme Court, vastly improving the access of lawyers and judges to statutes, case law and legal theory.

Figure 2. Supreme Court building, Perth, circa 1905. State Library of Western Australia, 010034PD, permission needed.

Following the death of Burt, Sir Henry Wrenfordsley took up the post of Chief Justice in April 1880. Unlike Burt, Wrenfordsley did not pass his first death sentence until his second day on the bench, in a housebreaking and attempted rape case (The West Australian, 9 April 1880, 3). He was succeeded a few years later by Sir Alexander Onslow, although Wrenfordsley returned as Acting Chief Justice for two years when Onslow went on leave in 1889. Edward Stone, who had been the first puisne (a judge other than the chief justice) judge appointed in Western Australia, became Chief Justice upon Onslow’s retirement in 1900. The eleventh Chief Justice, Sir Francis Burt, who served in that position from 1977 until 1988, was a direct descendant of the original Chief Justice.

In 1880 a new Supreme Court Act was introduced that came into force on 1 August 1881. The Act allowed for the appointment of one or more puisne judges, and for the Chief Justice and other judges to sit as a Full Court. The Act furthermore empowered the Chief Justice to make Rules for the conduct of the Court. These Rules were revised in 1888, and again in 1909. They were subsequently amended many times before being completely revised in 1971. The Act also allowed judges from the Supreme Court to attend country sittings on circuit in order to hear matters in centres such as Albany, Bunbury, Kalgoorlie, Geraldton, Carnarvon, Port Hedland, Broome, Derby and Wyndham.

Until 1883, the Supreme Court could not try criminal cases until a Grand Jury of thirteen to twenty-four had determined from the depositions that there was enough evidence to forward. The Grand Jury Abolition Act repealed the necessity of a Grand Jury finding a ‘true bill’ before a case could go to trial, substituting instead the simple filing of an information by a magistrate.

Another Supreme Court Act was passed in 1935. The major alterations over its predecessor related to the stipulations as to the necessary qualifications of Supreme Court judges, and a provision to allow the Full Court to give decision in appeals, rather than simply remitting cases to the lower court.

Today the Supreme Court is composed of the Chief Justice of Western Australia, nineteen puisne judges, one Master (who deals only in civil matters), the Principal Registrars and eight Registrars. Criminal matters brought before it include murder, armed robbery, arson and serious breaches of drug laws.

Other Courts

While from 1830 the Courts of Quarter Sessions dealt with the more serious criminal offences in Western Australia, the Courts of Petty Sessions presided over the numerous minor infractions that were daily occurrences in colonial society. The administration of the Petty Sessions devolved upon voluntary Justices of the Peace and Government Residents, who later became known as Resident Magistrates. The number of Justices required to hear different matters varied, but an important provision in the Summary Procedure, Justices Act 1844 allowed that if there was only one Justice of the Peace within twenty miles, he could act alone even if more than one Justice was required to try the offence by statute.

In the main the penalties dealt out at the Petty Sessions involved fines or short periods of imprisonment; however, the use of stocks was also a feature of early Western Australian justice. At the Court of Petty Sessions in 1833, for example, two unfortunate urchins caught stealing fruit from the Government Gardens were sentenced to the stocks and thereafter delivered to their parents to be flogged. The use of stocks was finally abolished in 1851.

The introduction of convicts in 1850 increased the burden upon the Justices and Resident Magistrates, who were given the duty of disciplining convicts for infractions. Under the Police Ordinance of 1861 every Justice of the Peace was made a Police Magistrate for the purposes of the Act. Two years later, under the Magistrates Jurisdiction Act, all Police and Resident Magistrates were accorded the right to hear and rule on matters alone even if by statute they were required to do so in committee. The Police Act 1892 set out a number of offences that fell under the purview of the Petty Sessions, including obscenity, disorderly conduct, negligent driving, vagrancy, gambling, injuring public property and certain assaults or acts of stealing.

The Court of Petty Sessions continued to operate throughout the twentieth century. By the 1930s, it was increasingly preoccupied with driving offences, over which it had been given jurisdiction under the 1919 Traffic Act. In 2005 the Court of Petty Sessions was amalgamated with the Small Claims Tribunal and Local Court to form the Magistrates Court of Western Australia, empowered to rule on low-level civil and criminal issues.

The right to appeal decisions in criminal cases by bringing them to a higher court developed in an incremental fashion. During its first thirty years of the colony, the Courts of Quarter Sessions exercised appellate jurisdiction over decisions by magistrates in the Petty Sessions. For serious crimes, the decision of the Court of Quarter Sessions was final, subject to the prerogative of mercy vested in the Governor in consultation with the Executive Council, or by special appeal to the Privy Council in England, which rarely interfered with the decisions of colonial courts in criminal matters.

The Supreme Court Ordinance of 1861 made formal provision for appeal to the Governor in Executive Council, officially to be called ‘the Court of Appeal of Western Australia’, but its jurisdiction was limited to error of law at trial, rather than mistake of fact. Under the 1880 Supreme Court Act the puisne judges and Chief Justice of the Supreme Court sitting as the Full Court could entertain motions for retrials and pronounce on points of law. The Full Court was also empowered to entertain fresh evidence in special circumstances. In 1886 it was given the status of a Court of Appeal.

However, it was not until the appointment of a third judge to the Supreme Court in 1892 that the Full Court became a satisfactory source of appeal, breaking the deadlock if the trial judge refused to reverse his decision. In 1893, the Criminal Law Appeal Act determined that appeals in criminal cases deriving from summary jurisdiction could be heard by a single judge of the Supreme Court, rather than the Full Court. Following the establishment of a Court of Criminal Appeal in England in 1907, an amendment was passed to introduce one in Western Australia in 1911. In 2005, the Court of Appeal was established as a Division of the Supreme Court.

In 1907 the State Children’s Act, although primarily concerned with child welfare issues rather than justice, authorised the establishment of a Western Australian Children’s Court from 1908. Rather than having to appear in the crowded Petty Sessions, neglected or impoverished children deemed in need of State care, as well as offenders under the age of eighteen, were diverted to the Children’s Court. But the Western Australian Children’s Court was unique in Australia in also establishing jurisdiction over those charged with offences against children. These children’s courts, established in Perth and other places, were presided over either by a Special Magistrate, or by two or more Justices of the Peace. In a typical sitting of the Perth Children’s Court in 1919, four young boys were charged with breaking and entering and a six-year-old Indigenous girl was made a ward of the State, as were four other children left destitute by the death of their parents (The West Australian, 1 August 1919, 9).

Figure 3. Children’s Court of Western Australia, circa 1967, State Library of Western Library, 342411PD, permission needed.

While the Supreme Court Ordinance 1861 abrogated many of the powers granted under the Court of Quarter Sessions Act of 1832, some criminal matters in country districts continued to be heard before the Quarter Sessions under the chairmanship of Resident Magistrates. However, as the population increased in the post-war period, pressure and work demands on the Supreme Court grew. A new intermediate court level, the District Court, was introduced in 1970. In 1976 matrimonial causes and the adoption jurisdiction were transferred to the newly formed Family Court of Western Australia.

Criminal Law

Western Australia’s criminal law, inherited from England’s common law and the legislation in effect there on 1 June 1829, saw little change or attempt to respond to local conditions until the late nineteenth century. With the Criminal Law Consolidation Ordinance 1865 Western Australia adopted the major amendments and additions to the common law effected in England by a series of statutes passed in 1861: the Accessories and Abettors Act; Larceny Act; Malicious Damage Act; Forgery Act; Coinage Offences Act; and the Offences against the Person Act. The next most substantive contribution to the law, the Criminal Law Amendment Act 1892, likewise was largely a duplication of England’s Criminal Law Amendment Act 1885 that expanded the number of sexual offences punishable at law, particularly those related to underage girls.

Despite the existence of these and other statutes, most defendants in Western Australia were still indicted for offences under the unwritten common law until the introduction of the Criminal Code Act 1902. The Western Australian criminal code followed substantially the Queensland criminal code of 1899, which had been prepared by future High Court Chief Justice Sir Samuel Griffith. It has been argued that the decision to establish a criminal code rather than rely upon the common law, as well as the choice to adopt Queensland’s criminal code almost unchanged, was influenced by the ‘tyranny of distance’ in Western Australia which led to a lack of ready sources on criminal law. During parliamentary review some debate was provoked by the provisions outlawing brothels and the heavy penalties attached to gambling, while the issue of whether to allow majority verdicts in criminal cases was also raised. However, considering the magnitude of the bill, the discussion was relatively brief and straightforward.

The 1913 Criminal Code Act incorporated the new indictable offences, as well as a number of procedural amendments, that had been created by the Secret Commissions Act of 1905. Apart from this alteration, almost all the new criminal offences created during the twentieth century in Western Australia were enacted in statutes other than the criminal code, and were ordained as simple offences and therefore subject to summary jurisdiction. This meant they were ruled not serious enough to be accorded jury trials, even though some carried substantial penalties. Gold stealing, for instance, was enacted as a simple offence in a 1906 amendment to the Police Act, possibly because sympathy for the practice meant a goldfields jury might be reluctant to convict such defendants. Committing frauds upon the dole and passing valueless cheques were likewise introduced as simple offences under the Police Act in 1933 and 1959 respectively, even though both were analogous to the offence of false pretences already included in the code.

Western Australia remains one of only three Australian states with criminal codes, the others being Queensland and Tasmania.

Crime and Criminals

Crime and disorder made their presence felt from the inception of the Swan River Colony, placing pressure on Lieutenant-Governor James Stirling to create a system of criminal justice almost immediately, whereas a court to address civil matters would be deferred until 1832. The business brought to these criminal courts was colourful and varied. One unusual early case involved a charge of murder against two of the colony’s lawyers after one succeeded in fatally shooting a Fremantle merchant in a duel.

While the Swan River Colony had been founded as a free settlement, by the late 1840s its development was threatened by a severe shortage of labour. Just as penal transportation was ending in the eastern colonies, it was introduced in Western Australia to bring much-needed manpower and capital investment from England. Between 1850 and 1868, just under 10,000 male convicts arrived in Western Australia. Reoffending by convicts seems to have prompted less public concern in Western Australia than elsewhere. Much of the recidivism by convicts involved simple public order offences like drunkenness and disorderly conduct. Nevertheless, of the approximately 1,450 defendants who came before the superior courts of Western Australia between 1859-1887, 612 (or 42.2%) were expirees. Over three-quarters of ex-convict defendants appeared in relation to property offences.

Other convicts escaped the Convict Establishment at Fremantle, or abandoned their work assignments within the settlement, to turn bushranger. The most famous was horse-thief Joseph Bolitho Johns, better known as ‘Moondyne Joe’, who became a celebrated figure following several escapes from confinement. In 1887, Thomas Hughes, a local-born bandit known as the ‘Fremantle bushranger’, likewise gained notoriety after he remained at large in the bush outside Perth for many weeks before his arrest and conviction.

The nineteenth century saw a number of important developments around the conduct of criminal trials. Until 1836, under English law only persons on trial for treason or misdemeanours were able to retain legal representation, and even then counsel could only advise them as to law and not facts. It seems to have been assumed that following 1836 the English Act also applied in Western Australia. For instance, Jane Green, tried for the murder of her child in 1840, was represented at trial by R. W. Nash, although it would be another four years before legislation permitting legal representation to felons was formally adopted under the Imperial Acts Adopting Act.

Other significant nineteenth-century innovations in criminal justice included: allowing Aboriginals to give (unsworn) evidence in court (1841 – an innovation that was however temporarily over-ruled by the imperial government); prohibiting the fact of previous convictions being given in evidence to a jury except when the accused proffered evidence of their good character (1844); and, most significantly, allowing accused persons, who had previously only been able to make unsworn statements to the jury and bench, to give evidence in the normal manner of witnesses (1899).

Nineteenth-century justice allowed many forms of punishment that are now defunct. Until 1856, Western Australian criminals could be sentenced to transportation to New South Wales or Van Diemen’s Land (Russell 1980, 134). The practice of hanging the bodies of criminals by chains after death had been abolished twelve years earlier (Russell 1980, 135). By the close of the nineteenth century, the Prevention of Crimes Act 1898 demonstrated both punitive and progressive impulses in regards to the sentencing of offenders. It enabled judges to punish robbery with violence and similar crimes by whippings, but also allowed prisoners to be released on a supervised licensing system, foreshadowing later probation and parole provisions.

Capital punishment was not abolished in Western Australia until 1984. Prior to this, a sentence of death would be pronounced by the Court, but would not be confirmed until the Governor and Executive Council had received a report on the case and ruled it was not appropriate for clemency (Russell 1980, 134). One of the first individuals executed in Western Australia was fifteen-year-old John Gaven, who in 1844 was convicted of murdering the son of his employer. The rate of executions increased significantly in the mid-1850s, with thirteen people executed between 1854 and 1857, including Bridget Hurford, the first woman executed in Western Australia, and four Aboriginals.

As they do today, Aboriginal defendants historically comprised a disproportionate number of cases brought before the criminal courts (Martin 2011, 32). Of 7,457 defendants who appeared before Western Australia’s superior courts between 1830 and 1914, approximately 1,362 (18.3%) were Indigenous. The majority were committed either for cattle-killing, as colonisation encroached on traditional means of survival, or for homicides, many of which involved tribal killings justified under Aboriginal law and custom (Prosecution Project data; Hunter 2012, 179, 187). Brought in for trial from the far-flung corners of the colony, into the twentieth century Aboriginal defendants suffered gruelling marches during which they were chained at the neck to prevent escape back into the bush.

Figure 4. Aboriginal prisoners in neck chains aboard the vessel N2, State Library of Western Australia, 003169D, permission needed.

The Western Australian gold rushes of the 1890s caused a massive influx of newcomers to the colony that brought fears of social disruption. The soaring population naturally caused a spike in the rate of crime that meant additional work for police. However, while drunkenness and prostitution were rife on the diggings, it has been suggested that the western goldfields suffered less of the violence that had marked their earlier eastern counterparts. Gold stealing though was a pernicious problem, plaguing large-scale mining operations. The level of involvement and toleration for the practice within local communities in the early twentieth century in some ways replicated the tensions over stock stealing between rural workforces and wealthy pastoralists in the eastern colonies during the nineteenth century.

The unbalanced gender ratio in colonial Western Australia led to a thriving sex trade in Perth, initially located in Hay Street, where more than sixty brothels were believed to operate at one time. Under pressure from authorities, the industry was relocated to Roe Street in the early 1900s, where it could be unofficially supervised from the central police headquarters located at the other end of the street. The red-light district of Kalgoorlie similarly came under attack in the early twentieth century; however, many believed that, on the goldfields especially, prostitution was a ‘necessary evil’ in order to prevent men engaging in more blatantly criminal acts. Prostitution was policed in Western Australia through vagrancy laws and public order offences, with those suspected of suffering venereal disease especially subject to surveillance.

Female offenders invariably attracted particular media attention, especially when their crimes were seen as a contravention of traditional feminine roles, such as those involving offences against children. In 1909 horrified Perth residents closely followed the trial of poisoner Martha Rendell, charged with murdering her fourteen-year-old stepson, and suspected of murdering her five-year-old and seven-year-old stepdaughters. Rendell was to be the last woman to be executed in Western Australia. Young women who killed their illegitimate infant children, on the other hand, were often treated sympathetically by the press and by juries. When nineteen-year-old single girl Ellen Jane Sutherland appeared before the Perth Supreme Court in 1919 charged with manslaughter over the death of the infant she had given birth to in her parents’ outhouse, she was found not guilty (The West Australian, 3 September 1919, 8).

Figure 5. Martha Rendall, Sunday Times, 19 September 1909, 1.

During the 1930s the gold industry offset but did not completely eliminate the effects of the Great Depression in Western Australia. Competition for jobs, especially in the mines, stirred racial tensions against workers of southern European origins, and resulted in riotous scenes of violence and property damage. Illegal gambling also flourished during the desperate inter-war period. While the police and courts were often complacent in pursuing and punishing it, the focus of anti-gambling legislation on working-class forms such as S.P. betting engendered resentment until its repeal upon the Labor Party coming power in 1953.

The Second World War opened up a new line of defence for criminal behaviour, with men pleading for clemency from judges and juries by declaring their intention to enlist immediately upon discharge from court (Kalgoorlie Miner, 1 June 1940, 1). Separated from their families and in new surrounds, some soldiers committed bigamy by marrying women they met on leave or while stationed in Western Australia (The Daily News, 22 July 1941, 8). By the post-war period, car stealing and joyriding had become significant problems in Western Australia. In 1953, for instance, the Resident Magistrate of Kalgoorlie had to make a special trip to Norseman to deal with five alleged car thieves (The West Australian, 3 July 1953, 8). Crime in general soared during the 1950s, with prosecutions for property crime in particular more than doubling across the decade.

Court Records

The main records that members of The Prosecution Project are working with derive from the State Records Office of Western Australia. As our principal focus is on the prosecution of serious crime in general from 1860 to 1960, the archival material being used primarily originates from the Supreme Court. Our first object was to digitise the information contained in Western Australian Series 49, which consists of criminal indictment registers dating from the earliest years of settlement at Swan River. These registers provide details such as case number, name of accused, offence, date of trial, judge, verdict and sentence. To date we have transcribed years 1830-1953, with the digitisation of years 1954-1961 expected to be completed shortly.

Based on consultation of Series 49, Prosecution Project researchers have been able to conduct targeted searching within Western Australian Series 122, the criminal indictment files. These case files contain material such as witness depositions, statements by accused, police correspondence, trial exhibits, bail agreements, jury panels and character reports on defendants and their conviction histories. 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.

Into the future, The Prosecution Project is interested in exploring other Western Australian court records, particularly those related to criminal appeals from Series 276, and the sittings of the Quarter Sessions, Series 204.

Legislation

Court of Quarter Sessions Act 1832
Aborigines, evidence without oath 1841
Summary Procedure, Justices 1844
Sentencing, transportation abolition 1856
Supreme Court Ordinance 1861
Police Ordinance 1861
Magistrates Jurisdiction Act 1863
Criminal Law Consolidation Ordinance 1865
Supreme Court Act 1880
Grand Jury Abolition Act 1883
Supreme Court Amendment Act 1886
Police Act 1892
Criminal Law Amendment Act 1892
Criminal Law Appeal Act 1893
Prevention of Crimes Act 1898
Criminal Evidence Act 1899
Criminal Code Act 1902
Secret Commissions Act 1905
Criminal Code Amendment Act 1906
State Children’s Act 1907
Criminal Code Act 1913
Police Act Amendment Act 1933
The Supreme Court Act 1935
Police Act Amendment Act 1959
Abolition of Capital Punishment Act 1984

Online Resources

http://slwa.wa.gov.au/find/wa_resources/police_gazettes
(Western Australia Police Gazettes, 1876-1900)

https://www.slp.wa.gov.au/legislation/statutes.nsf/main_yrbyyrsall.html
(Western Australian legislation as passed)

http://www.austlii.edu.au/au/cases/wa/WALawRp/
(Western Australian Law Reports, 1898-1958)