Research Brief 11
The forms of law can appear opaque. Ostensibly they are designed to ensure a measure of due process. Their impact on accused and complainants may be unpredictable. During the nineteenth century governments tried to formalise and even simplify the process by which criminal charges were brought and trials conducted.
An early example in South Australia was the 1849 Ordinance which aimed to remove ‘defects in the administration of criminal justice’. Among other changes introduced to facilitate the prosecution of crime, this statute enabled prosecutors to add new charges to the original indictment or to amend a defective indictment. This was to avoid ‘a failure of justice’ when the accused or their lawyers challenged the terms in which a charge had been laid.
In spite of such legislation, into the twentieth century the courts continued to scrutinise carefully the wording of an indictment. They certainly did so in Adelaide in 1906, when six Indigenous men were brought up for trial in the Supreme Court on charges of assaulting a warder and escaping gaol.
Their journey to the court-room had been lengthy. All were from Central Australia, their names given in court as Coota Coota, Cungakai, Mooldurna, Qualpa, Eulla and Chookeena. The Advertiser told their story in a lengthy account of their trial in Adelaide in April 1906. The men had been imprisoned at Heavytree Gap Gaol for cattle-killing on stations near Alice Springs. One day they were taken in chains to work at a kiln site, under the supervision of a single warder. While four of the prisoners were in an excavation hole, the warder John Grant was assaulted when he went down to give them orders. All six escaped, heading for the Hermannsburg mission, leaving Grant with his revolver and rifle untouched. Arrested at the mission, they were charged with escaping prison.
The case did not go well for the prosecution, perhaps in part because the prosecutor was South Australian Crown Solicitor Charles James Dashwood, a former government resident and judge of the Northern Territory, and by this time well known for his sympathy with Aboriginal rights. The prisoners’ defence counsel, appointed by the court, questioned the Alice Springs constable in charge of Heavytree Gap Gaol about harsh treatment of the prisoners. One constable had been dismissed after ‘thrashing’ the prisoners. The warder was also suspected of harsh treatment. But defence counsel triumphed with his submission that there was no case to answer – for the charge of assaulting a prison officer to hold, the men had to be prisoners within the meaning of the Prisons Act 1869-70, and there was no documentation in court to show that.
Summing up the case Judge Gordon told the jury that there was no doubt the men were in custody, ‘but that was not evidence that they were legally prisoners’. In this case there were no papers to demonstrate their status – ‘they had only the bare word of the keeper of the prison and the warder’. He directed the jury that they should bring in a verdict of not guilty.
This was not the end of a sorry and wasteful saga for the police and prison authorities. After Dashwood expressed regret that the necessary papers had not been brought down from Alice Springs, he was reminded by the judge that the ‘same argument will apply in the charge against the prisoners for escaping from gaol’. Dashwood agreed and withdrew the second charge against all men.
The day’s proceedings were concluded with a final reminder to police and magistrates of the need to attend to their paperwork. When ‘Witchetee, a youthful-looking native’ was brought up on a charge of escaping from gaol, Mr Dashwood again announced that he intended to withdraw the charge. In this case the Crown Law Office had in fact received a warrant of commitment to gaol signed by two justices of the peace. But the warrant stated that the man was to be imprisoned in the Alice Springs Gaol. Doubtless this was news to the justices of the peace, who thought they had signed a prison warrant. But in Adelaide the Supreme Court had already heard enough debate about the Heavytree Gap Gaol, which was of course at Alice Springs, but was not the one named on Witchetee’s warrant.
In a single day seven men from Central Australia had been exonerated from charges that failed to make the grade.
Author: Professor Mark Finnane, ARC Research Fellow
To cite this research brief: Mark Finnane, ‘What’s in a name’, The Prosecution Project, Research Brief 11, https://prosecutionproject.griffith.edu.au/whats-in-a-name-4 (27 April 2015, viewed 19 July 2016).