SOUTH AUSTRALIA'S JUSTICE SYSTEM STARTED AND DEVELOPED DIFFERENTLY to those of other Australia colonies. In other colonies, the judicial system gradually evolved to include a supreme court as its highest tier of criminal and civil justice – with ultimate appeal to the privy council in England. South Australia started with powers for a supreme court in place.
Plans for administering the law in South Australia, including a supreme court, were carefully organised before the colonisation of South Australia, inspired by the theories of Edward Gibbon Wakefield. Five days after the colony was proclaimed, the powers for a supreme court of South Australia were declared by ordinance on January 2, 1837. Although the court wasn't operating beyond a basic form until the 1840s, it was invested from the start with all the common law, equitable and probate jurisdictions of the Westminster courts.
This top-down start didn't give South Australia a superior start in legal stability. Early colonial South Australia
was of hotbed of quarrels and claims that often ended up in the overstretched court.
Two lawyers who travelled on the first pioneer ships with George Strickland Kingston were Charles Mann, who became advocate general for the colony, and James Hurtle Fisher, resident commissioner representing the colonising commission in London. Mann and Fisher led the fight against first governor John Hindmarsh.
When Mann filled in during second judge Charles Cooper's illness in 1849, he faced "as nice a dish of libel cases as any judge was ever set down to".
By 1844, there were 20 legal practitioners in the colony but the law in South Australia from 1837 to 1850 was often very much “hit and miss”, prompting the Legal Practitioners Act of 1845. South Australia's Real Property Act of 1857-59 created another point of difference. Before then, lawyers had the monopoly of land conveyancing. The act handed most of the conveyancing work to land brokers.
Although, in 1894, South Australia was one of the first places in the world to extend voting rights to women, it wasn't until 1911 before the first female lawyer practised and 1965 before women were chosen as jury members. Yet Roma Mitchell was the first female lawyer in Australia to be made a queen's counsel, in 1962, and she was the first woman in the nation to be appointed a judge.
ROUGH AND TUMBLE START TO THE SOUTH AUSTRALIAN LEGAL SYSTEM
Key figures in founding South Australia’s justice system, Edward Gibbon Wakefield and John Jeffcott, both experienced the English system as defendants. South Australia’s early legal system was decided before the colony was settled, based on Wakefield’s ideas formed while in London’s Newgate prison from 1827 for abducting a 15-year-old heiress. The prison time led to his study of emigration and his solution: systematic colonisation. His also produced ideas on the justice system by investigating fellow prisoners: their punishments and prospects. This led to his Facts Relating to the Punishment of Death in the Metropolis (1831), and The Hangman and the Judge (1833). His Sketch of a Proposal for Colonizing Australasia was printed in 1829. John Jeffcott was appointed chief justice of Sierra Leone and the Gambia in 1830. He returned to England in 1832 on leave, extended on medical grounds. The next year, he was knighted and about to return to Africa when, in a duel at Exeter, he shot and killed Peter Hennis, a young doctor. Jeffcott sailed for Africa before he could be caught. A warrant was issued for Jeffcott's arrest. No one wanted to press the murder charge and it was arranged that, if he returned to England for trial, no evidence would be put. He surrendered at Exeter Assizes in 1834, was arraigned on the murder charge and acquitted. He was unemployed 1834-36 before being appointed to South Australia.
The first criminal sessions of the South Australian courts were under the colony’s first judge, Justice John Jeffcott, on May 13, 1837. Jeffcott’s term was short. He drowned at the River Murray mouth on November 19. (South Australia lost another supreme court judge, William Wearing, to the sea in 1875, when the Gothenberg, bringing him back from the circuit court in Palmerston, later Darwin, was wrecked on the Great Barrier Reef.) Jeffcott was appointed the colony’s first judge in England in 1836 but, settling his affairs (he'd been acquitted of a murder charge in 1834), meant he didn’t arrive in Adelaide until April 1837. Jeffcott “admitted three Englishmen to practise in the roles of barrister, solicitor and proctor” to start the South Australian justice structure. At the first criminal courts sitting, he congratulated the colony for, unlike others, allowing trial by jury. William Light was jury foreman. The court admitted the public prosecutor as a practitioner. Seven prisoners were presented on charges of burglary, break and enter, and rioting. Dismayed at the “dreadful dissensions” between governor John Hindmarsh (supported by Jeffcott) and his opponents, Jeffcott soon was looking for a position elsewhere. He was given leave to go to Hobart Town to consult with judges there on South Australian legal legal difficulties. On November 19, Jeffcott was waiting to board his ship in Encounter Bay when the whaleboat he was in capsized.
Charles Mann, South Australia’s first advocate-general and crown solicitor, was outspoken in defence of the democratic principles of the colony’s founding. This made him an enemy of the first governor John Hindmarsh. Mann also opposed the second governor George Gawler also taking on the role of resident commissioner – also against the wishes of colony’s founders. Mann was a solicitor in the King's Bench Division with a practice in Cannon Street, London, when he became associated with the South Australian colony project. At Hindmarsh's request, Mann was appointed South Australian advocate-general, arriving at Holdfast Bay in January 1837. A Whig, Mann was a strong believer in the democratic spirit. In disputes over the divided powers of governor Hindmarsh and resident commissioner James Hurtle Fisher, Mann advised Fisher that Hindmarsh was undermining the colony’s founding statutes. This led to Mann resigning in November 1837. He also argued that George Gawler's appointment as both governor and resident commissioner was contrary to the intentions of the founders. Mann built a large private legal practice. He became master of the supreme court in 1844, acting judge in 1849, crown solicitor in 1850, police magistrate and insolvency commissioner in 1856, and commissioner of the court of insolvency and stipendiary magistrate in 1858. Mann’s son Charles also had a distinguished career in law and parliament.
George Milner Stephen was an extraordinary product of the feud between South Australia’s first governor John Hindmarsh and resident commissioner James Hurtle Fisher. In 1837, advocate general and crown solicitor Charles Mann resigned after siding with Fisher. Meanwhile, George Milner Stephen, a brilliant school student born into a well-connected English family (he was related to Colonial Office under secretary James Stephen), became a supreme court clerk in 1829 in Hobart Town where his brother Alfred was crown solicitor. Hindmarsh, who’d heard from judge John Jeffcott that Alfred Stephen had resigned in Hobart as crown solicitor, wrote to Van Diemen’s Land governor John Franklin inviting “Mr Stephen” to accept the vacancy in Adelaide. Franklin was surprised to get a request from clerk George – not Alfred – Stephen for leave to visit Adelaide, to consider the offer, and an advance of £100 to buy law books. In 1838, George Stephen left some amazed people in Hobart soon to be appointed as South Australia’s advocate-general and crown solicitor. Hindmarsh told the Colonial Office’s James Stephen that his brother George appointment was justified by the “very connexion with yourself and being abused by such people (Hindmarsh's enemies in South Australia) as do so”. When Hindmarsh was called to England in 1838, George Stephen was left as the senior council of government member and thus acting governor.
19th CENTURY CONFLICT BETWEEN SUPREME COURT JUDGES
SPECIAL CHALLENGES IN SHAPING SOUTH AUSTRALIA'S JUDICIARY FROM 19th INTO 20th CENTURY
Charles James Dashwood was a beacon of an enlightened attitude to Aboriginal justice during the 1890s as the judge appointed by the South Australian government to the Northern Territory. Educated at the Collegiate School of St Peter, in 1858, he studied civil engineering at the University of Ghent, Belgium. Back in South Australia, he was articled to (later supreme court judge) William Bundey and admitted to the Bar in 1873. In 1887, Dashwood won the seat of Noarlunga in the House of Assembly. He was appointed government resident and judge of the Northern Territory in 1892. Dashwood took a hard line at first. He authorised the public execution of a convicted Aboriginal at the scene of his crime and ordered that the gallows remain standing as a warning. But Dashwood started to doubt the justice of trying Aboriginals in a language and system they didn’t understand. He became concerned at their ill treatment by Europeans. He drafted a bill for the South Australian parliament to regulate and supervise Aboriginals' conditions of employment and to prevent Aboriginal women being violated. Dashwood put his case for it in 1899 in Adelaide but the bill was severely criticised by a select committee. It then lapsed. Pastoralists had lobbied against it. Dashwood continued to anger landholders by defending Aboriginals’ right to access to their hunting grounds and watering holes. In 1904, Dashwood resigned, after the longest administration by a South Australian government resident. Next year he became South Australia's crown solicitor, "to the surprise and disappointment of the legal profession”.
South Australia led the way (with Western Australia) among Australian colonies in having grand juries from its founding in the 1830s but was also a leader in getting rid of them in 1852, way ahead of the England and the United States. Initially, South Australia followed the English legal system more closely than other colonies. From the start of South Australia’s supreme court in 1837, grand juries of 12 and up to 23 men determined whether a defendant should be committed for trial. South Australian supreme court Justice George Crawford – a traditionalist who was first to wear the judicial wig – seriously questioned the value of such “out of date, cumbrous and useless machinery” as the grand jury. He successful petitioned the South Australian Legislative Council to abolish grand juries. Richard Hanson, the government advocate general and future chief justice, introduced the parliamentary bill for this to happen, with police magistrates to take over the role of grand juries. Getting rid of grand juries, seen as upholding community liberty against excesses by the crown, was a major symbolic move by South Australia. Unlike Western Australia who persevered with grand juries, South Australia was more confident in its other institutions. The moves towards having one of the world’s most advanced democratic constitutions, with Hanson as a major author, were under way from 1851. At the time, it was also anticipated that England was going to replace grand juries. That didn’t happen until 1933.
Having been the first in the world in 1895 to gain both the right to vote and stand for parliament, South Australian women were energised to assert women’s place in the justice system. In 1911, Evelyn Vaughan (wife of future premier Crawford Vaughan) spoke for a deputation to Labor premier John Verran in favour of women being able to serve on juries. This was not successful but, in 1915, the Vaughan Labor government did appoint four women – a first for the British empire – as justices of the peace. They were Elizabeth Nicholls (Women’s Christian Temperance Union president), Jane Price (wife of the first Labor premier Tom Price), Mrs E. Cullen (Adelaide Hospital board member) and Cecilia Dixon (a founder of the Travellers Aid Society). Also in 1911, South Australian women were allowed to practise as lawyers, opening the way for Mary Kitson, the state’s first female law graduate, to be admitted to the Bar in 1917. Queensland was the first state to allow women jurors in 1923 but the South Australian campaign for it took another 40 years. A deputation to the Tom Playford government in 1951 was led by Dr Constance Davey and Phyllis Duguid. The chief secretary Reginald (R.J.) Rudall, from the Adelaide legal firm dating back to 1854, agreed that women were “competent, able and intelligent” but he simply didn't favour them as jurors. Roma Mitchell QC led a renewed unsuccessful campaign in 1960, with a deputation of seven women’s organisations introduced to Playford by the LCL MPs Jessie Cooper and Joyce Steele. In a surprising reversal, Playford in 1962 agreed to women jurors from 1965.
The Rupert Max Stuart murder case contributed to the fall of the premier Tom Playford’s long-standing South Australian government in 1965. Stuart's execution was set for July 7, 1959. Of letters to The Advertiser, 75% of writers favoured the sentence being commuted and petitions with thousands of signatures backed this. On the morning before, the first petition supporting the execution arrived by telegram with 334 signatures from Ceduna, Thevenard and districts. Playford’s executive council considered the petitions for 20 minutes before issuing a statement that the execution would go ahead next day. But Playford’s failure to curb discredited statements about Stuart’s English-speaking ability by police association president Paul Turner, who was involved in the case, prompted the Law Society of South Australia’s appeal to the Privy Council, putting a stay on the execution. Playford’s next move was to appoint a royal commission. Including chief justice Mellis Napier and justice Geoffrey Reed, both involved in the trial and appeals, as commissioners sparked a worldwide uproar, including bias claims from the president of Indian Bar Council, UK Liberal Party leader Jo Grimond and former British prime minister Clement Atlee. A clash between Mellis Napier and Jack Wentworth QC, over questioning of a detective, added to the front-page headlines from the commission. Labor Party MP Don Dunstan’s questions in parliament played a major role in Playford's decision to commute Stuart's sentence to life imprisonment, two months before the commission's findings, upholding the death sentence.
AFTER MOVE FROM FORMER QUEEN'S THEATRE BUILDING IN GILLES ARCADE IN 1851
South Australia’s court of petty sessions (also known as the police court or magistrates court) were enacted on January 2, 1837, alongside the supreme court. The magistrates of these courts dealt with minor matters, such as public drunkenness, through summary jurisdiction or no jury. After grand juries were abolished in 1852, these lower courts decided on evidence for more serious criminal cases to go to trial at the supreme court. All courts were conducted in the Queen's Theatre building in Gilles Arcade from 1843.
South Australia established the district court – an intermediate between the supreme court and the courts of petty sessions (police magistrates) – in 1969. The district is now the state’s principal trial court, housed since the 1980s in the Samuel Way Building – the former Charles Moore department store – in Victoria Square. The district court covers civil, criminal, administrative and disciplinary, and criminal injury matters. Its criminal cases don't include the most serious, such as murders, that are heard in the supreme court.
LAWYERS ADDING TO DISTINCTIVE SHAPE OF SOUTH AUSTRALIAN LAW
SOUTH AUSTRALIAN CHIEF JUSTICES AFTER SAMUEL WAY FROM 1916
George Murray was the reluctant supreme court judge who became chief justice when Samuel Way died in 1916 and senior puisne judge John Gordon declined the position due to ill health. Murray, the conservative son of a Scots pastoralist and politician, was chosen by Crawford Vaughan’s Labor government in a new non-partisan approach to appointments. As under Way, Murray brought little innovation but held strongly to a traditional view of law’s role in society.
Mellis Napier was the son of the Dr Alexander Napier, ostracised by Adelaide “society” for ignoring a British Medical Association black ban in 1896 and keeping Adelaide Hospital open. Nor did Mellis Napier endear himself to conservatives as chairman of a 1935 federal royal commission into the money and banking systems. Napier, as South Australian chief justice, also became mired in controversy over his part in the Maxwell Stuart case in the 1960s. But his diligence, fairness and even sense of fun is evident.
If chief justice Mellis Napier has loosened the image of South Australian supreme court judges, his successor John Jefferson Bray positively exploded the stereotype. Bray, a published poet, was the antithesis of stuffiness: hatless, pub going, shunning official cars and blackballed by the Adelaide Club. Beyond that casual lifestyle was an exceptionally gifted scholar, lawyer and jurist. Bray’s mastery of common law principles and his expressive writing came to be recognised in judicial decisions extending overseas.
Len King had a major effect on South Australian law over 25 years, from his time as attorney general between 1970 until 1975 during the reformist Don Dunstan government and then as judge on the supreme court bench and chief justice from 1978. During that quarter century, King made big changes in the law in areas as diverse as consumer rights, Aboriginal affairs, social welfare, criminal law and procedure, electoral law and corporate law. He was the driving force in creating the district court and Courts Adminitrstion Authority.
John Doyle was a continuum from Len King as chief justice insofar as coming out of the Roman Catholic school system (dux of St Ignatius College in 1962) and a keen follower of Norwood Football Club. Doyle became Adelaide University's 61st Rhodes Scholar and did his bachelor of civil laws at Oxford’s Magdalen College. He was South Australian solicitor general (1986-95) with skill in complex constitutional cases. Several times hopes were dashed that he may become the first South Australian on the high court of Australia.
Chris Kourakis, South Australia’s ninth chief justice, is recognised as one of Australia’s leading law reformers in the civil litigation and modernising court infrastructure with new technology. One of 10 children from a Greek Australian migrant family in Port Lincoln, Kourakis worked early in his career alongside Elliott Johnston QC, later a supreme court justice, who nurtured his passion for social justice and law reform. Kourakis was state solicitor general from 2003 before becoming a supreme court justice in 2012.
ADELAIDE UNIVERSITY LAW SCHOOL STARTS IN 1883; FLINDERS UNIVERSITY'S IN 1992
Roma Mitchell, one of Adelaide University's most distinguished law graduates, also later became university chancellor. Her other firsts for women included supreme court judge, Queen’s Counsel and state governor. Mitchell completing her university course in four years instead of five with the 1934 David Murray Scholarship for most brilliant student. Yet she was barred from the university’s law students society. In Mitchell's footsteps, Catherine Branson QC became first female state crown solicitor, a federal court judge and Australian Human Rights Commission president.
James Crawford’s authority on international law took him to judge on the International Court of Justice from 2014. Crawford attended Brighton Secondary School before receiving his bachelor of laws (honours) and bachelor of arts at Adelaide University in 1971. His first contact with international law came through Daniel O’Connell, who later became Chicele professor of public international law at Oxford University. Crawford followed O'Connell to Oxford, was accepted to University College and completed his doctorate on the creation of states in international law. From Oxford, Crawford returned to Adelaide University, lecturing in international law and constitutional law. In 1982, he accepted a position at the Australian Law Reform Commission and served until 1984. In 1985, Crawford was elected an associate of the Institut de Droit International (the youngest elected in modern times) and elevated to full membership in 1991. He remained in Adelaide until 1986, when he was appointed to the Challis professorship of international law at Sydney University and was dean of the law faculty 1990-92 and, from 1992-2014, Whewell professor of international law at Cambridge University. Another Adelaide University law graduate to have made an international impact is John Finnis, the Biolchini family professor of law at Notre Dame Law School and permanent senior distinguished research fellow at the Notre Dame Center for Ethics and Culture.
Irene Watson, a proud Tanganekald and Meintangk woman from the Coorong region and south east of South Australia, was the first Aboriginal law graduate from Adelaide University, in 1985. She also was its first Aboriginal PhD graduate (2000), winning the Bonython Law Prize for best thesis. Her research is driven by a better understanding of the Australian legal system that underpinned the unlawful foundation of terra nullius. Watson's work has impacted on everyday legal practice by bringing an Indigenous perspective to law reform. In 2015, Watson published her first work on the legality and impact of colonisation from the Aboriginal law viewpoint. She has been involved in the Aboriginal Legal Rights Movement in South Australia since its start in 1973, as a member, solicitor and director. She has taught in all three South Australian universities and was a research fellow with Sydney University law school. In 2016, Watson was appointed first Indigenous pro-vice chancellor at the University of South Australia where she is professor of law and associate professor in Aboriginal studies. She continues to advocate for first nations peoples in international law. Watson was involved with drafting the United Nations Declaration on the Rights of Indigenous Peoples 1990-94 and, in 2009-12, intervened before the UN Human Rights Council Expert Advisory Committee of the current position of Indigenous peoples.
FEDERAL COURTS HEAR COMMONWEALTH LAW CASES IN ANGAS STREET, ADELAIDE
The role of the South Australian Employment Tribunal expanded in 2017 far beyond its role from 2015 in dealing with workers’ compensation disputes under the Return to Work Act 2014. The tribunal, in the Riverside Centre building, has now become a one-stop shop for resolving disputes between employers and employees. It takes over the work of the Equal Opportunity Tribunal and the Industrial Relations Court and Commission that have been abolished.
SEPARATION OF POWERS TESTED IN SOUTH AUSTRALIA
The Nemer and McGee cases in the early 21st Century set off a major upheaval in the relationship between the state government and the judiciary, with many side issues raised including the independence of the director of public prosecutions, the appointment of Queen’s Counsel, plea bargaining and sentencing. The upheaval was not just between the government and the judiciary but also within the judiciary. It also set off outside public calls for the overhaul of the whole judicial system.
Sentencing, appeals and prisoner release have been prime areas of pressure on state governments to interfere in the justice system. A major effect of a state government law change in 2013 was the successful appeal in the next year by Henry Keough against a murder conviction in 1994 after his fiancée Anna Jane Cheney drowned in a bath at the couple's home in Adelaide's north-eastern suburbs. The Court of Criminal Appeal overturned Keogh's conviction in 2015 after findingformer South Australian chief forensic pathologist, Colin Manock, gave incorrect evidence at the trial. Derek Bromley, who had served 34 years for the 1984 murder of Stephen Docoza, and Fritz van Beelen, convicted of murdering 15-year-old Deborah Leach at Taperoo Beach in 1971, were unsuccessful in their appeals using the same law change. Labor premier Mike Rann (2002-11) used executive powers several times to stop the release of prisoners such as murderer Stephen McBride. But public opinion had a reverse effect on prisoner rights when the South Australian parliament passed a law in 2013 granting a convicted person, even after appeals had been exhausted, the right “to petition the governor for mercy” if new evidence had emerged against the soundness of the conviction. Sentencing again became an issue when 18-month gaol was given to a 16-year-old boy who was driving a stolen utility that killed Nicole Tucker when it crashed into her car on the Southern Expressway in 2016.
INDEPENDENT COMMISSIONER AGAINST CORRUPTION (ICAC) JOINS WATCHDOGS
Mellis Napier (chief justice, 1942-67) and T. Slaney Poole (supreme court justice 1919-27) revived the Law Society of South Australia after earlier short life in 1851 and an official start in 1879. The law society provides services and support to members and the legal profession. It does legal education and promotes improved access to justice. The South Australian Bar Association of independent barristers gives assistance to the community and maintains professional standards and discipline within the Bar.
BACKLOG OF COURT CASES A MAJOR PROBLEM