Benjamin Boothby, only South Australian judge removed from office, in 1867; opposed province's laws and government
South Australian 19th Century justice Benjamin Boothby humiliated future supreme court judges Edward Gwynne and Randolph Stow.
Image courtesy State Library of South Australia
Benjamin Boothby, the only South Australian judge ever to be removed from office, replaced George Crawford as the second judge on the supreme court in 1853 – the last appointment of a South Australian judge by the British colonial office.
Recommended by colonial secretary, the Duke of Newcastle, for the South Australian post, Boothby was on the attack soon after his arrival with his wife and 12 children. He took offence easily and was rude to his other judges and to members of the bar appearing before him. Among future supreme court judges that Boothby humiliated were Edward Gwynne (the prosecutor in the Popham rape trial) and Randolph Stow, whose QC qualifications were challenged by Boothby who threatened to commit him for contempt of court.
In 1857, Boothby caused public outcry by usurping the jury’s role in the involving Ann Mara, a domestic servant, who had accused her employer, influential Glenelg surgeon William Popham, of rape.
Boothby dictated that Ann Mara first be tried for perjury over her police deposition charging Popham. At the end of evidence, Boothby suggesting to the jury why a woman might bring a false charge of rape. The jury and public didn’t agree When a not-guilty verdict was returned, the public gallery cheered. Boothby charged two gallery members with contempt of court. The next day the trial against Popham started but, at the end of Mara’s testimony, Boothby halted proceedings on the grounds of lack of evidence – based on no more than his opinion that Mara was lying.
In 1858, Boothby's attitude in court to lawyers and juries alike led to new attacks on him. Boothby directed a jury in a civil proceeding to bring in a finding for the defendant. When the jury didn’t do this, he locked them up for 24 hours without food and drink.
Boothby created many controversies but most prominently in refusing to recognise the colony’s ways of responsible government.
Boothby opposed departures from the English legal pattern in the South Australian legal system, especially that the grand jury had been abolished. He condemned proposals for responsible government in South Australia, in the Constitution Act of 1855-56, particularly that judges wouldn’t be allowed to sit in parliament and that all ministers should be members of parliament.
Boothby's strong views on the limited capacity of colonial parliaments infuriated South Australian parliamentarians. He was correct in his views on some of the issues he raised required two statutes to be passed by the British parliament. He persisted obdurately in his views after the passing of the statutes and was ultimately removed by the South Australian parliament in July 1867.
Boothby appealed to the Privy Council in London but died before the appeal was heard – with the possibility that he may have been successful.
