South Australia in 1844 first Australian colony to allow evidence being given by Aboriginal people in its courts

The painting of expedition led by police commissioner Major Thomas O'Halloran (right) to the Coorong in August 1840 when two Aboriginal men were hanged without trial after the killing of passengers on the Maria. 
Image by unknown painter, courtesy Art Gallery of South Australia

In 1844, South Australia became the first Australian colony to allow evidence from Aboriginals to be accepted in courts.

This was a consequence of the 1840 episode when Aboriginals killed more than 20 shipwrecked survivors of the Maria near the Coorong. South Australia’s first chief justice Charles Cooper told governor George Gawler that he found it impossible to try, according to English law, “people of a wild and savage tribe, who have never submitted themselves to our dominion”. This didn’t please Gawler who sent Major Thomas O’Halloran to the Coorong on an expedition that hanged two Aboriginal men in front of their tribe.

The British colonial office strongly rebuked Gawler and O’Halloran’s actions to the point of suggesting that they had committed murder. The colonial office, under Lord Melbourne’s Whig government, was now dominated by humanitarians such as Lord Glenelg, George Grey and James Stephen, all active campaigners against slavery and concerned about the rights of Indigenous people

South Australia’s first judge John Jeffcott (a strong anti-slavery campaigner), in a charge to a grand jury in 1837, had warned that “any infringement of (Aboriginal) rights” would be “visited by the greater severity of punishment”. He said “humanity shudders” at the treatment of Aboriginals in the convict colonies of the east.

But, in Grey’s Report (1840), the colonial office said that Aboriginals were to be treated as British subjects for all purposes. In practice, Aborigines weren’t British subjects and didn’t have the same rights in judicial proceedings. Grey’s report criticised allowing Aboriginal people to exercise their customary law in any circumstances.

South Australia’s chief justice Cooper wouldn’t concede that Aboriginal people should always be tried for offences under British law. In 1846, an Aboriginal man was brought before the court for killing another Aboriginal person. Cooper argued that he required a direction for such cases and the accused was discharged because no competent interpreter was available.

In 1848, Cooper accepted jurisdiction over an Aboriginal case but said that “in the case of conviction he would stay any execution required by law and specifically refer the case to the Governor”. Cooper warned colonists against regarding “the lives of the natives … too cheaply”.

Cooper’s assistant judge George Crawford, in his last official act in 1852, sent the colony’s executive council notes on the trial of three Aboriginal men sentenced to death for murdering Warrim Yerriman in a tribal fight. Crawford recommended the sentence be commuted and queried the supreme court’s jurisdiction in cases involving offences between Aboriginal people .

In 1849, a grand jury presentment called for more police in districts with violence between settlers and Aboriginal people.

A jury in 1852 urged the government against interfering in Aboriginal customary law in cases among Aboriginal people themselves. But, after the murder of a Mary Ann Rainbird and her two children near Kapunda in 1861, public support for holding Aboriginal offenders accountable to English law increased.