The South Australian supreme court in 1914. Seated: Justice John Gordon, Chief Justice Samuel Way, Justice George Murray. Standing: E.M. Sabine (assistant), G.C. Ligertwood (assistant), W.L. Stuart (master), Fred Balfour Schultz (later McBryde, assistant).
Image by E.H. Tilley, courtesy State Library of South Australia

SOUTH AUSTRALIA THE ONLY COLONY TO START WITH A SUPREME COURT, among
early points of difference in its legal system 


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 19th CENTURY SOUTH AUSTRALIAN LEGAL SYSTEM

CHARLES COOPER, GEORGE CRAWFORD BRING SOME ORDER
to courts after first judge John Jeffcott drowns in Murray in 1837

Legal system begins with Edward Wakefield, an abductor, and John Jeffcott, killer in a duel

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.

John Jeffcott only lasts a few months: first to two South Australian judges to be drowned in the sea

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, the first advocate general,
 firm on
 founding principles of South
 Australia

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's amazing rise from clerk to advocate general of South Australia in 1838

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.

First chief justice Charles Cooper instills intellect, calm behind conservative timidity

Judge Charles Cooper, not recognised as South Australia’s first chief justice until 1853, arrived in 1839 after John Jeffcott’s drowning in 1837. Cooper wasn’t liked by Adelaide’s popular press and derided as timid, conservative, casual and lax ­­ – rather than gentle and righteous with rectitude. But Cooper helped bring peace to colony’s legal fraternity and his intellect and independence has been belatedly recognised, especially in applying English law to Aboriginal people. Charles Cooper had entered London’s Inner Temple in 1822 and became a pupil of Richard Preston, the celebrated conveyancing barrister. Cooper practised law in the Oxford circuit until appointed judge in South Australia in 1838. He arrived in Adelaide in the Katherine Stewart Forbes with his sister, and stayed with George Milner Stephen while his own house was built in Whitmore Square. Here, in 1839, he held his first court. Cooper hoped for an end to the frivolous and vexatious litigation in the colony. Cooper was religious, conservative and frugal. He married in late middle age and had periods away due to ill health.Cooper was dismayed by the confusion in land titles in a  young colony. A voluntary registry of deeds was started in 1842 and was kept 16 years. While Cooper remained strongly attached to English law, he helped draft South Australian parliamentary bills and, in his most important judgment, in 1848, he disregarded the unpopular colonial ordinance imposing one-fifteenth royalties on minerals. He supported the explorations of Charles Sturt who named the Cooper Creek in his honour.



 

George Crawford brings order to courts in South Australia in 1850 but dies two years later

A second judge, George Crawford, arrived from Ireland in 1850 to help the ailing Charles Cooper in hearing the big workload of cases in the South Australian court.  Crawford, who had a stricter approach to court protocol and arrangements, was a major assistance to Cooper. Crawford insisted on the dignity of his office. He was the first judge in South Australia to wear a judicial wig, and was quick to reprimand unpunctual barristers or sleepy jurymen. Crawford was welcomed by the legal profession with a breakfast at the Freemasons’ Hotel. Two days later, despite protests from the contractors, the new supreme court building on the eastern corner of Angas and King William streets was forcibly entered to house the judicial papers which had been left in a cart in Victoria Square. In August, 1850, Crawford presided at the first sittings in the new courthouse and, despite a petition from Anglican bishop Augustus Short and other community leaders, he had to sentence to death a prisoner convicted of murder. Crawford died of bladder and kidneys disease in 1852 and the next year saw the appointment of the controversial Benjamin Boothby, who would become the only judge to be removed from office. With Crawford gone and left to deal with the eccentric Benjamin Boothby (appointed puisne judge in 1853), the sick and exhausted Cooper retired to England on a pension in 1861. He regained his health and survived to the age of 92.

19th CENTURY CONFLICT ON SOUTH AUSTRALIAN SUPREME COURT LEADS TO BOOTHBY'S AMOVAL

BENJAMIN BOOTHBY v. EDWARD GWYNNE, RICHARD HANSON
over the colony's right to make laws for responsible government

Benjamin Boothby at odds with colony's law and government; Popham case outcry

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. Boothby created many controversies but most prominently in refusing to recognise the colony’s laws for responsible government. He also attracted public outcry over his handling of the rape charge against influential Glenelg surgeon William Popham.

 

Edward Gwynne, the conservative third judge, backs amoval of Benjamin Boothby

Edward Castres Gwynne, appointed third judge on the South Australian supreme court in 1859, became the in-between factor iduring the war waged by fellow judges Benjamin Boothby and the chief justice Richard Hanson (appointed 1861). Gwynne was a conservative who shared much of Boothby’s opposition to South Australian laws. But Gwynne disputed Boothby’s claim that Hanson was improperly appointed as a judge. Gwynne had to. Boothby said the same thing about him. Gwynne sided with Hanson in supporting Boothby's amoval from the court in 1867.

 

Richard Hanson as chief justice, writer of colony's constitution collides with Boothby

Richard Hanson became the second South Australian chief justice in 1861, succeeding Charles Cooper. He came to role with a deep aggressive Nonconformist utopian ideals applied to the founding of South Australia. Arriving in South Australia in 1846, he practised law and became the government advocate general in drafting the colony’s constitution. As premier and attorney general under that 1857 constitution, he introduced a swag of laws. This set him up to clash with the erratic judge Benjamin Boothby.

ENERGY, AMBITION AND WIDE INTERESTS BURST THROUGH CONTROVERSIAL ASPECTS OF HIS RISE

SAMUEL WAY DOMINATES THE SUPREME COURT FOR 40 YEARS
and gives major contribution to South Australian society at large

Samuel Way paves way to South Australian chief justice with energy, ambition, luck

Samuel Way’s Australian-record 40 years (1876-1916) as chief justice of South Australia’s supreme court were a triumph of ambition, talent, energy – and luck – over qualifications and social advantage. Way was born in 1836 at Portsmouth, England. The son of Bible Christian minister James Way, he attended Shebbear College, Devon, and a Kent school run by a Unitarian minister. In 1850, James Way migrated with his wife and younger children to be superintendent of his church in South Australia. After his education, Samuel Way joined his family in Adelaide in 1853. He worked in the office of barrister John Tuthill Bagot before being articled to solicitor Alfred Atkinson and admitted to the bar in 1861. Industrious and competent, Way benefitted from a twist in events. Atkinson had gone insane, leaving his junior to run the practice. When Atkinson died, Way bought his practice by instalments for £1000. Way became a legal leader with some high-profile matters. In 1863, he appeared before House of Assembly select committee in the dispute over Moonta copper mines leases. In 1867, Way was retained by the South Australian government in an action for the amotion of Benjamin Boothby from the supreme court. Barrister James Brook joined Way as partner in 1868. Next year, Way holidayed in England where he was concerned in two appeals to the privy council. In 1871, Way was made a Queen’s Counsel, despite being admitted to the bar only 10 years earlier. When Brook died in 1872, Way’s strong legal practice was bolstered by young and brilliant Josiah Symons joining him as partner.

Samuel Way leaps from attorney general to South Australian chief justice in 1876, aged 39

Samuel Way was a member of the South Australian parliament for about a year – enough to elevate him to chief justice of the supreme court. Elected to the House of Assembly in 1875 as the member for Sturt, he joined premier James Boucaut’s ministry as attorney general. After chief justice Richard Hanson died in 1876, Way succeeded him at the age of 39. Since the attorney general usually recommended judicial candidates, it was suggested Way nominated himself to be chief justice.  Way's appointment was disapproved by the supreme court bench and by his practice partner Josiah Symon. Puisne judges Edward Gwynne and Randolph Stow ostracised Way in private. Way gave up a salary of almost £6000 for £2000 as chief justice but he'd earned £40,000 from 15 years in practice. He’d reached chief justice without university qualifications. Way reorganised the circuit courts and fused law and equity similar to English judicature acts. He invented the summons for immediate relief. He formalised judicial dress on the English model, with scarlet and ermine in the criminal court. He presided over royal commissions, notably in 1883 into the Destitute Act. Its recommendations partly relieved the plight of boys on a rotting hulk used as a reformatory ship, eased servitude for unmarried mothers, and urged a state children's relief board. Gwynne's retirement in 1878 allowed Way harmony until 1903 with supreme court colleagues James Boucaut (former premier, appointed 1878) and William Bundey (1884). Way dominated the court. The only time he was in the minority, he was upheld in the privy council.

 

Samuel Way the first Australian on the UK privy council in 1897; made a baronet in 1899

South Australian chief justice Samuel Way in 1897 became the first Australian to be appointed to the judicial committee of the privy council in Britain. The appointment, needing  negotiated support from other Australasian colonies—was forwarded by Langdon Bonython, proprietor and editor of The Advertiser in Adelaide, and, more grudgingly, by premier Charles Kingston. Sitting on the judicial committee in England, Way heard appeals from India, China, South Africa, Jamaica and New South Wales. But his time on privy council  in 1897 was only brief and he returned claiming it was because the British or the Australian colonial governments wouldn’t pay his salary and expenses. But there is also the suggestion he experienced icy and condescending attitudes from some quarters in Britain. More honours did flow to Way. In 1899 he was created a baronet – of Montefiore, North Adelaide, and Kadlunga, Mintaro, both in the colony of South Australia. Though he had several times refused a knighthood (perhaps because his senior puisne judge James Boucaut was a KCMG), Way quickly accepted the baronetcy. He said it would have been a little presumptuous to have “declined a dignity which was accepted by Sir Walter Scott” and he was proud to have become the first Methodist baronet in the British empire. Way was awarded an honorary LL.D. by the University of Cambridge and an honorary doctorate of civil law at the University of Oxford in 1891. During his time in England, Way had visited his old school, Shebbear College in Devon, and presented it with a neighbouring farm.

South Australian chief justice Samuel Way plays big role in society with some controversy

Samuel Way, as South Australian chief justice (1876-1916), also was a prominent and active player in broad aspects of society, also attracting an element of controversy. His public roles ranged from being appointed (from 1890) as the colony’s lieutenant governor, Adelaide University’s vice-chancellor (1876) and chancellor (1883-1916), president of the public library, museum and art gallery, a freemasonry grand master (1884-1916) and a shaper of Methodism. Way’s role of lieutenant governor was controversial because he was appointed by the governor, the Earl of Kintore, without the South Australian government cabinet being informed. Kintore was also a free mason and Way stepped aside as grand master of the grand lodge for him to take over during his term as governor (1889-95). Elected to the university council in 1974, Way’s time as the university vice chancellor and then chancellor (until he died) also was criticised because he didn’t have tertiary qualifications. At university ceremonies, Way wore his judge’s wig and gown because he wasn’t entitled to academic dress, although he also was on the board of education. Way promoted Adelaide Children's Hospital, as board president from its founding in 1876. He was also active in Bible Christian affairs. He helped unite the three Methodist sects in 1900 into the United Methodist Church of Australia and New Zealand, and stayed a staunch member of the Methodist conference. In 1872, he’d bought Montefiore, a North Adelaide mansion. On his Kadlunga property, he grazed the Shropshire sheep he’d introduced into Australia. 

Samuel Way's mistress/ family a secret before an Adelaide high-society life with wife Katherine

Samuel Way, South Australia’s chief justice (1876-1916) and staunch Methodist, had a secret life and family. Susannah Gooding was Way’s mistress for two decades and he fathered at least five of her children. From a convict family background, Gooding was an unmarried mother, with two young children from different fathers, and a domestic servant in a Tasmanian town when she met Way who was on holiday. He maintained a covert relationship with her in Tasmania and later Melbourne. Way helped Gooding set up a millinery business and the family with housing and education expenses. After Gooding's death in 1888, he kept some contact with the surviving children: Alfred White and Edward White, who became prominent Melbourne physicians, noted for war service and philanthropy. Alfred was knighted as Sir Rowden White. Ten years after Gooding’s death, Way married 44-year-old Katherine, widow of Strathalbyn doctor and mayor William Blue, who’d died in 1896 after 24 years marriage. Time and venue of her wedding to Way, of major public interest, were kept secret until well after the event. As Lady Way, Katherine ("Kitty") became prominent in Adelaide society and highly regarded for her community service. She was with Way for 16 years until her death when crowds lined the streets for her funeral. Way and Kitty had no children but she had four from her first marriage. Her daughter Shylie Rymill was prominent in sport and then Adelaide society, and state commissioner of Girl Guides.

Samuel Way, as South Australian chief justice, distrusts Australian high court from 1901

South Australian chief justice Samuel Way distrusted the Australian high court created after the nation was federated in 1901: “That court was no more needed than the fifth wheel to a coach”. In 1906, he refused a seat on the high court and he strove unsuccessfully behind the scenes to prevent any curb on the power of the privy council to grant leave to appeal from the high court of Australia. The high court soon showed a propensity to reverse decisions of state courts. This changed Way's method – from delivering most judgements extempore to reserving and delivering them at length. In 1909, Way inevitably had a decision reversed by the high court, for the first time in 34 years, in Dashwood v. Maslin. Way was assessed by later chief justice John Bray as not a great jurist: “His pragmatic mind inhibited intensive historical research or jurisprudential analysis. At times, he strained the law to produce the result which he thought justice and common sense demanded (see De Pledge v. Australian United Steam Navigation Co., 1904). But he was conscientious, intelligent and industrious, and his verdicts gave general satisfaction. His judgement in the celebrated corset case (Weingarten v. Wills & Co., 1906), taking nearly four hours to read, showed his ability to marshal and assess a complex array of facts”. Way felt the retirement of long-time supreme court colleagues William Bundy (1904) and James Boucaut (1905), especially when new judge John Gordon dissented from him in the first case they heard as a full court. Way later found Gordon to be an excellent judge and an agreeable colleague. 

Influential Adelaide friends fund statue to Samuel Way; working until his death in 1916

Samuel Way, South Australian chief justice, suffered the double blow in 1914 of wife Katherine’s death and being diagnosed with cancer. He went to Sydney where, in July, Alexander MacCormick amputated his left arm. Way wrote 11 pages describing his journey, the operation and recovery. He returned to the supreme court in October 1914 and struggled on with his many duties. The cancer recurred. He presided over the university commemoration in 1915 and sat twice in the full court in the next week. He continued work as chief justice until December 1915 and he died in January 1916 at his North Adelaide home. His estate was valued for probate at £55,000 (gross). His library of 15,000 volumes was willed to Adelaide University. Way's voluminous candid letter books are in the Mortlock Library of South Australiana. His sister is said to have burnt his personal diaries. Influential friend decided to erect the statue in his honour on North Terrace, Adelaide, in 1914. A committee, chaired by Langdon Bonython, owner and editor of The Advertiser newspaper, with others including architect Walter Bagot, Bank of Adelaide chairman Arthur Waterhouse, businessman James Gartrell and MP and company director David Gordon (secretary), raised funds from 16 donors in a few days. English sculptor Alfred Drury, whose work Way liked, was commissioned in 1915. The bronze couldn’t be cast until after World War I, with foundries commandeered for military purposes. In 1923, the Orient Steam Navigation brought the statue to Adelaide free of cost. The pedestal was designed by Walter Bagot and erected by J. Tillett. 

Sir Samuel Way courts building a second life for Adelaide Moore's store on Victoria Square

The Sir Samuel Way building in Victoria Square, Adelaide, is the major memorial to South Australia’s longest-serving chief justice. Now home to the district and supreme criminal Courts, court of criminal appeal and environment resources and development court, the building was formerly Moore’s major department store, opened by Charles Moore in 1916 and modelled upon the famous Parisian department store Galeries Lafayette. In 1948, Moore’s store was nearly destroyed by fire. The iconic staircase was one of the few internal features to survive the blaze. The declining store was sold in 1979 to the South Australian government’s superannuation fund investment trust. Strong public sentiment for it to be preserved saw it redeveloped into law courts. Some of the buildings original features were retained, including the grand staircase, designed by English architect William Lucas. The new courts building, with terracotta tiled roof and dome added, opened in 1983. It houses 10 criminal courtrooms,16 civil courtrooms, a library, chambers, conference rooms, court registries, the sherriff’s office, transcription services, media and communications, justice of the peace services and administration areas. In 2019, the state government bought the Sir Samuel Way Building for $43.5 million. This aimed to save the Courts Administration Authority annual rent of more than $6 million. The building also was upgraded as part of the $31 million higher courts development. The 2019-20 state budget has also allocated $591,000 to bring in a state-wide in-court digital document management system.

SPECIAL CHALLENGES IN SHAPING SOUTH AUSTRALIA'S JUDICIARY FROM 19th INTO 20th CENTURY

ABORIGINALS, JURIES AND WOMEN TEST THE LEGAL SYSTEM
with Rupert Maxwell Stuart case in 1950s a watershed moment

Hangings at Coorong in South Australia: Charles Cooper rejects English law for Aboriginals

In 1844, South Australia became the first Australian colony to allow evidence from Aboriginals in courts. This related back to the 1840 episode when Aboriginals were reported to have killed 20 shipwrecked survivors of the Maria near the Coorong. South Australia’s first chief justice Charles Cooper had 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, dominated by Whig humanitarians such as Lord Glenelg, Sir George Grey and James Stephen, rebuked Gawler and O’Halloran’s actions to the point of suggesting that they had committed murder. In 1849, a grand jury presentment called for more police in districts with violence between settlers and Aboriginal. A jury in 1852 urged the government against interfering in Aboriginal customary law in cases among Aboriginal themselves. But, after the murder of a European woman Mary Ann Rainbird and her two children near Kapunda in 1861, public support for holding Aboriginal offenders accountable to English law increased. A 1858 South Australian law abolishing all hangings in public was changed so Aboriginals would continue to be hanged near the place of the crime.


 

Charles Dashwood as South Australia's beacon of justice for Aboriginals in Territory

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 leads colonies with grand juries from 1837 and abolishing them in 1852

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.

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First female JPs in 1915, first female lawyer in 1917 but no women let onto juries until 1965

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.

Geoffrey Robertson QC at the 2006 seminar reflecting enduring interest in Stuart case

Lasting interest in the 1959 death-penalty conviction of Rupert Max Stuart for the murder of Mary Hattam, with its appeals and royal commission, was reflected in the “Politics, power, justice and the media: controversies from the Stuart case” seminar that attracted 500 people to Adelaide University’s Elder Hall in 2006, with Geoffrey Robertson QC, internationally renowned human rights lawyer, broadcaster and author, leading a panel session. Former federal judge and university chancellor John von Doussa opened the seminar with speakers including high court Justice Michael Kirby summarising the Stuart’s case complex legal and political issues with improvements made since. The seminar was arranged by the Law Society of South Australia and Adelaide University’s law school, development and alumni office, and its John Bray Law Chapter whose president John Keeler said the interest of the Stuart case “lies in whether the criminal justice system treated – and treats – individuals and minorities fairly, and it's about relations between the government and the press in controversies with powerful and emotional legal and political impacts. The Stuart case is symbolic of enduring issues of human rights and press freedoms.” Geoffrey Robertson said it was a dramatic and very important case because “it alerted Australia to the difficulties that Aborigines, who then weren't even counted in the census, encountered in our courts. It alerted us to the appalling feature of capital punishment of the death sentence that applied to people who may well be innocent.”

Rupert Max Stuart to be hanged in 1959 in South Australia in case resting on a typed confession

A typed confession in precise educated English became the key evidence for Rupert Max Stuart, an itinerant Aboriginal from Central Australia, to be convicted and sentenced to hanging in 1959 in the South Australian supreme court for murdering nine-year-old Mary Hattan at Ceduna, on South Australia’s Eyre Peninsula, in December 20, 1958. Roger Cardwell, married to Hattan’s cousin, alerted police and Ceduna citizens, who were watching Dial M for Murder in the memorial hall, that Hattan was missing. A search found her body in a small beach cave at 12.30am. The attending doctor said she had been raped, mutilated and murdered. Two Aboriginal trackers followed tracks, identified as from a member of a northern Australian tribe, from the cave to a travelling funfair where Stuart, an Arrente man, had worked. After initially denying the murder, Stuart later signed a typed confession with his only written English: his name, misspelling his first name as “Ropert”. At the trial, Geoffrey Reed was judge and J.D. Sullivan assigned by the Law Society to represent Stuart, without the resources to check his alibi or conduct forensic tests. The case against Stuart relied almost entirely on his confession to police. Stuart's defence was that police had beaten him then fabricated his confession but to say this under oath would allow the prosecution to present his prior criminal history, including indecently assaulting a young girl in Queensland. The jury found Stuart guilty. Stuart’s appeal to the high court of Australia failed, although the court found “certain features of this case have caused us some anxiety”.

Rupert Murdoch's fight for Rupert Max Stuart launches his rise to international fame

The Rupert Max Stuart case is regarded as launching Rupert Murdoch's rise to international prominence. It was significant in having Murdoch as an anti-establishment campaigner against the death sentence and helping make Aboriginal rights an issue. Murdoch’s struggling Adelaide afternoon newspaper, The News, edited by Rohan Rivett, campaigned heavily against the 1959 death sentence for Stuart over the murder of a nine-year-old girl in the remote South Australian town of Ceduna. With Stuart's execution set for July 7, 1959, rising public opinion in favour of commuting the sentence forced South Australian premier Tom Playford set up a royal commission into the Stuart case. The government and the commission were immediately criticised for impartiality of commissioners Justice Geoffrey Reed, the judge for the Stuart trial, and Chief Justice Mellis Napier, presiding on the full court that rejected Stuart’s appeal. With circulation soaring,The News went to war with headlines like “These commissioners cannot do the job” over an editorial written by Murdoch. After Stuart lost a second appeal,The News featured stories with new details of the case, often contradicting the Adelaide judiciary. Murdoch bankrolled the search for alibi evidence from Stuart’s travelling carnival fellow workers in Queensland. He sent Catholic priest Tom Dixon, the first to ask questions about the confession made to the police, on the search with defence lawyers. The Stuart affair was Murdoch’s brief period of radicalism. A few weeks after the libel trial, Murdoch dismissed Rivett as editor of The News. 

Tom Dixon, Ted Strehlow fuel Stuart campaign taken up by Law Society of South Australia

Catholic missionary priest Tom Dixon, who spoke fluent Arrernte, was called in to communicate with Aboriginal Rupert Maxwell Stuart on the prison death row days before he was due to be executed in 1959 for the murder of a nine-year-old girl in the South Australian town of Ceduna. Dixon was suspicious about the sophisticated English used in the Stuart’s alleged confession to police. Stuart only spoke a slightly advanced pidgin Arrernte-English. Dixon’s doubts were confirmed by anthropologist Ted Strehlow, brought up in Arrernte society and knowing Stuart since childhood. Strehlow was the first to translate Stuart's alibi and tested Stuart's English. He swore an affidavit that the confession couldn’t be genuine. Dixon contacted Charles Duguid, who ran the Aborigines' Advancement League, leading to a campaign to keep Stuart alive. In The News on July 3, a statement by the South Australian Police Association aimed to inform the public "of the real facts". It claimed Stuart spoke "impeccable English". J.D. O'Sullivan, Stuart's solicitor, refuted the police association claims, pointing out that its president was Paul Turner, most senior of the six policemen who obtained Stuart's confession. The Law Society of South Australia said the police association statement bordered on contempt of court. O'Sullivan was denied access to records of Stuart's trials and the government refused to prevent Turner from commenting on the case. The Sunday Mail ran O'Sullivan's “suspicion" that the government was determined to hang Stuart and was supporting the police association to do so.

Premier Tom Playford damaged by handling of Rupert Max Stuart royal commission in 1959

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

MAGISTRATES, DISTRICT AND SUPREME COURTS HIERARCHY
of South Australia's jurisdiction centred around Victoria Square

Colony sets up the court of petty sessions alongside the supreme court in January 1837

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.                 

Magistrates court handles about 90% of criminal and civil cases in South Australia

South Australia’s magistrates court (formerly called the police court and the court of petty sessions) was designated in 1991. All the state’s criminal matters begin in the magistrates court and it hears about 90% of all civil disputes.Magistrates usually preside over the court in Adelaide and key locations around the state. The Adelaide magistrates court building, on the south-east corner of Angas and King William streets, Victoria Square, was originally home to the supreme court, from 1851-73.

 

District court fills strata of civil/criminal matters between magistrates and supreme courts

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.

Supreme court deals with complex civil and serious criminal cases and appeals from them

The supreme court of South Australia is the superior court of the state in law and equity (fairness and justice). The court was officially established five days after the colony was proclaimed on January 2, 1837. It deals with the more important civil cases and the most serious criminal (murder, treason, attempted murder, manslaughter) matters. The supreme court reviews and decides errors from other courts of the state and interprets and expounds the law to guide other courts. The court usually sits in both the old supreme court building (for civil cases) and Sir Samuel Way Building (for criminal matters).

 

LAWYERS ADDING TO CHARACTER OF SOUTH AUSTRALIAN LEGAL SYSTEM FROM 19th CENTURY

JOSIAH SYMON, PARIS NESBIT ADD INDIVIDUAL BRILLIANCE
to South Australia's collective impact on legal system at large

Josiah Symon a giant of late 19th Century law for 30 years on the state and federal stage

Josiah Symon towered over his contemporaries and was acknowledged leader of the South Australian Bar for more than 30 years from 1871. At 29, Symon took charge of one of Adelaide's finest legal practices. He declined being elevated to the supreme court bench in 1884 but was a minister in two South Australian governments. His major contribution as a senator in Australian politics related to federation and especially in his interest and criticism of the early high court of Australia.





 

Brilliant Paris Nesbit leads Bar with Symon in between episodes of notoriety and scandal

The brilliant Paris Nesbit had 30 years sharing the late-19th Century leadership of the South Australian Bar with Josiah Symon. Nesbit, a Queen’s Counsel from 1893, drafted numerous complex government parliamentary bills and had a forensic ability and histrionic courtroom-cabaret style that won him admirers and detractors. But his fame became notorious for his time in lunatic asylums and as the “absinthe drinking, woman loving, tobacco-enslaved…Prince of Bohemia”.

 

Randolph Stow brief but brilliant judge of South Australian supreme court from 1875-78

Randolph Isham Stow, unchallenged leader of the Adelaide legal bar, was appointed judge of South Australian supreme court in 1875 to replace William Wearing, who died on the wreck of the SS Gothenburg. Stow was eldest son of Thomas Quinton Stow, founder of the Congregational Church in South Australia, where he migrated with his wife Elizabeth and sons in 1837. Randolph and brothers Jefferson and Augustine were educated at home by their father and at a school run by D. Wylie. Randolph Stow’s boyish ability saw him articled to lawyers Bartley and Bakewell where he became a junior partner. In 1859, Stow started his own business and later partnered with Theodore Bruce (1862–72) and F. Ayers. Stow was a member of South Australia's House of Assembly as member for West Torrens, Victoria, East Torrens and then Light. He was attorney general in the ministeries of George Waterhouse (until 1863), Henry Ayers (1864) and Arthur Blyth (1865). He died aged 49, three years after being appointed supreme court judge. John Downer, who became a QC the year Stow died, rated him “one of the greatest judges Australia ever had”. The Stow scholarship and medal was created for Adelaide University law students successful at final examinations in three successive years. Stow’s son, Francis Leslie was the first to win the scholarship and medal. Jefferson Stow was appointed a special magistrate and Augustine Stow was associate to the supreme court judges 1877-83 and registrar of probates and chief clerk of the supreme court in 1883-1903.

 

 

1882 Accused Persons Evidence Act one of South Australia's major innovations in law

South Australia had been an innovator in court procedures, most significantly with the Accused Persons Evidence Act 1882 that allowed defendants to be a witness in their own defence. A first for the British empire, this practice wasn’t followed by England until 1898. After an international panic about juvenile prostitution and white slavery in 1885, South Australia was the first colony to emulate England in raising the age of consent from 13 to 16 and to make it an offence to procure a female to become a common prostitute or enter a brothel. But much early colonial legislation related toBritish statutes. In 1845, the South Australian Crimes Act followed England in repealing use of the death penalty relating to minor offences, particularly malicious damage to property.




 

Lawyers' opposition to Torrens' conveyancing creates land brokers in South Australia in 1860s

South Australia’s legal profession created the state’s land broker phenomenon by bitterly opposing changes now known as the Torrens system. To get around the lawyers’ backlash against Robert Richard Torrens' threat to the conveyancing they monopolised, the Real Property Act 1860-61 introduced land brokers who were licensed to do conveyancing in competition with lawyers. Torrens, collector of customs in Adelaide from 1840, campaigned for election to the South Australian parliament on reforming land conveyancing. Under the old system, a person’s land title depended on documents recording each owner back to the original land grant from the crown. Under the Torrens system, the government issues a guaranteed certificate of title for land. The original certificate is held by the registrar general and a duplicate given to the owner. Later mortgages, sales and subdivisions are recorded on the single document. Torrens’ system was inspired by simpler laws for ownership of ships. He was helped by others, notably Ulrich Hübbe, a doctor of law from Kiel University, who explained the land title system operating in parts of Germany for 600 years. All South Australian land sold by the crown after July 1, 1858, was under the Real Property Act. By 1874, the Torrens system had been adopted by all Australian colonies and New Zealand. The system of licensing land brokers, who do most conveyancing in South Australia, never spread elsewhere.


 

South Australia's Elliott Johnston only judge in Australia to come from communist party ranks

Elliott Johnston QC was the only open communist to become an Australian judge, serving on the South Australian supreme court bench. He led the royal commission into Aboriginal deaths in custody (1989-91). Born in 1918, Johnston was schooled at Highgate Primary and Unley High but won a scholarship to Prince Alfred College. Studying law at Adelaide University, he became involved in student life. Although blind in one eye, he played cricket and football. One of the campus’s best debaters, in 1940, Johnston started the university Radical Club. It was banned within a month. His future wife Elizabeth Teesdale-Smith was Radical Club secretary. During World War II, Johnston served in New Guinea and rose to lieutenant. Back in Adelaide, Johnston opened his own law office in King William Street, fighting to improve workers' compensation rights. In 1942, Johnston had married Elizabeth who’d joined the Communist Party of Australia with him the year before. In 1950, after a peace congress in Warsaw, a trip to Moscow and Leningrad led to Johnston's passport being cancelled by Australian authorities. A year later he gave up law and became full-time Communist Party organiser. He studied in China 1955-57 before returning to Adelaide law. He won professional admirers but was rejected as a Queen’s Counsel in 1969 on political grounds by Steele Hall’s state government. This was reversed by Don Dunstan’s government. Appointed supreme court judge in 1983 without major controversy, Johnston left the Communist Party – but rejoined it when he retired in 1988 at age 70.

SOUTH AUSTRALIAN CHIEF JUSTICES AFTER SAMUEL WAY FROM 1916

GEORGE MURRAY, MELLIS NAPIER, JOHN BRAY, LEN KING, JOHN DOYLE, CHRIS KOURAKIS lead the state's legal family 

Conservative George Murray maintains Samuel Way's views on law's traditional role

1916-42
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 a model of fairness and diligence despite Maxwell Stuart case controversy

1942-1967
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.


 

John Jefferson Bray – poet, bohemian, gay friendly – explodes the stereotype of a judge

1967-78
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 the great law reformer, innovator from a working class family in Norwood

1978-95
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.

Hopes dashed for John Doyle to be first South Australian to sit on the high court of Australia

1995-2012
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 seeks law reform, access and modernising courts to cut the backlog of cases

2012-
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. 

Piper and Doyle among family streams running through legal fraternity of South Australia

Bob Piper, who practised law for more than 60 years and was a founder of the Piper Alderman legal firm, had a father and grandfather as South Australian supreme court justices and links to a family legal firm that goes back to first colonial governor John Hindmarsh. Now a national commercial law firm, Piper Alderman in 2013 established the Bob Piper law scholarship to support a student for the second and third years of their bachelor of laws at Adelaide University. It recognised Bob Piper as one of the firm’s founding partners, with long family links to the university. Piper was instrumental in transitioning the merger of Aldermans and Piper Bakewell Piper to form Piper Alderman law firm in 1988. Other streams of family links continue within the Adelaide legal system. Sam Doyle’s appointment as a justice of the South Australian supreme court in 2015 was in the footsteps of father John who was the court’s chief justice (1995-2012). Sophie David, whose father Michael was a supreme and district courts judge for 18 years, became a district court judge in 2015. The Doyles are a prime example of family tradition centred around the law school at Adelaide University. All four children of former chief justice John Doyle – Rebecca, Sam, Ben and Hannah – graduated at the school and practised laws. All four did double degrees and Sam and Ben followed their father to Magdalen College at Oxford to do the bachelor of civil laws, after winning commonwealth scholarships.


 

The legal elite in silk – Senior or Queen's counsel – recommended by the chief justice

The few barristers to become a Senior Counsel (SC) or Queen’s Counsel (QC) have to meet criteria of seniority and ability set by the supreme court and are appointed on the chief justice’s recommendation to the state parliament. Both the title, SC or QC, and the way they are appointed have been debated in South Australia in the 21st Century, with Labor premier Mike Rann (2002-11) calling for a review of what he called a “somewhat clubby” system.

ADELAIDE UNIVERSITY LAW SCHOOL STARTS IN 1883; FLINDERS UNIVERSITY'S IN 1992

MARY KITSON, ROMA MITCHELL, JAMES CRAWFORD and JOHN
FINNIS among distinguished graduates of Adelaide Law School

Adelaide University law school nation's second from 1883; Flinders Law an innovator from 1992

Adelaide University law school, founded in 1883, was one of the 19th Century pioneers in the English tradition of teaching law as a university discipline. The state’s other law school at Flinders University also has been an innovator since its start in 1992. Adelaide University has Australia’s second oldest law school teaching the LLB degree. It was first to admit women to study law in Australia and continues to lead with world-leading research, including law for military uses of outer space. Its role through the South Australian Law Reform Institute has become critical and it’s a national leader in insolvency, taxation, labour and constitutional law. Its alumni includes all the 20th/21st centuries’ South Australian chief justices as well as political figures such as Julia Gillard, Julie Bishop, Penny Wong, Jay Weatherill and Christopher Pyne. Adelaide law school’s Ligertwood Building, opened in 1967, has one of Australia’s best law libraries and a moot court for the 1400-plus students (more than half women). Flinders University’s law school’s first 60 undergraduates were admitted to its bachelor of laws in 1992. In 1999, bachelor of laws and legal practice offered Flinders students a degree and training in law as a barrister or solicitor. This allowed students to qualify to practise without upfront fees for the final part of their training. Flinders Law now has innovative criminal justice and legal studies majors plus bachelor of justice and society programmes.
 

Justice G.C. Ligertwood a prolific contributor to University of Adelaide, the law and society

G.C. (George Coutts) Ligertwood, judge on the South Australian supreme court (1945-58), is honoured for long service, from 1913 to 1966, to Adelaide University with its law school building named after him. His contribution to law and society extended much further. Ligertwood was educated at Norwood public school and Grote Street Pupil Teachers' School (later Adelaide High School), where he won an exhibition for three years at the Adelaide University. He graduated BA in 1908 and LLB in 1910, with three Stow (after supreme court justice Isham Stow) prizes, the Stow scholarship and David Murray scholarship in private international law. Ligertwood had a string of roles, from 1915 to 1966, with the university: examiner in wrongs, examiner in property, member of council, warden of the senate, deputy chancellor and chancellor. He was chairman of the planning committee for Flinders University and patron of Adelaide University Football Club. While on the South Australian supreme court, Ligertwood was appointed to three royal commissions by the federal governmen and one for the Western Australian government. He chaired the federal committee on taxation (1959–61) and the South Australian committee on assessment for land tax (1962–64). He was president of the Law Society of South Australiaand on the executive committee of the Law Council of Australia. From 1930–67, Ligertwood served as a governor of Scotch College.

Mary Kitson (Tenison Woods) goes beyond state's first female lawyer to role with UN

Mary Kitson (later Tenison Woods) was Adelaide University's first female law graduate and first to be admitted to bar, after being dux of St Aloysius College, Adelaide, in 1917. Two years later she was a partner of Johnstone, Ronald & Kitson. Much of her early work was in the Children's Court. In 1924, Mary Kitson married lawyer Gordon Tenison Woods. As her partners preferred not to work with a married woman, Mary Tenison Woods left and formed possibly Australia's first female legal practice in 1925 with Dorothy Somerville – first Australian female lawyer to take on a female article clerk: her niece Sesca Anderson, later Zelling: in 1941, the 35th woman admitted to the South Australian bar. In 1927, Tenison Woods left her husband after he was removed from the roll for misusing trust funds. As her son's sole supporter, she took a more lucrative position with Bennett, Campbell, Browne & Atkinson. In the mid-1930s, Tenison Woods moved to Sydney as legal editor with Butterworth & Co. She wrote “Reforms and law affecting women and children” for A Book of South Australia. Carnegie Corporation grants enabled research for her book Juvenile Delinquency. From 1941, she was on the Child Welfare Advisory Council (NSW). In 1950, she became chief of the office of the status of women in the division of human rights, United Nations Secretariat, New York, when conventions of political rights of women and nationality of married women were adopted.


 

Roma Mitchell: South Australia's first female QC, supreme court judge, state governor

Roma Mitchell, one of the most distinguished Adelaide University law graduates, also later became university chancellor. Her other firsts for women included supreme court judge, Queen’s Counsel and state governor of South Australia. Mitchell was from a legal family, her grandfather Samuel Mitchell being the first chief justice of the Northern Territory. In the footsteps of South Australia’s first female lawyer Mary Kitson/Tenison Woods, Mitchell finished as dux at St Aloysius Convent College, Angas Street, Adelaide, before studying law with honours at Adelaide University. Mitchell completed her university course in four years instead of five with the 1934 David Murray Scholarship Award for most brilliant student. Yet she was barred from joining the university’s law students society and was instrumental in forming the Women’s Law Students’ Society. In 1951, Mitchell and another South Australian legal figure, Sesca Zelling, defied an instruction that they couldn't attend the Commonwealth Legal Conference in Sydney dinner because it was male-only. Mitchell’s continuing achievements saw her honoured as the nation’s first female queen’s counsel in 1962. She led a mission for women to serve as jurors, and advocated equal pay for equal work. Mitchell was appointed judge on the South Australian supreme court In 1965. She became founding chairperson in 1981 of the Australian Human Rights Commission. Nearly 50 years after graduating, but keeping links with Adelaide University, she returned as chancellor – another first for Australian women. This was followed by state governor (1991-96).

James Crawford an international law colossus; John Finnis also a world player

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: from first Aboriginal law graduate at Adelaide Uni to first nations advocate at UN

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

YOUTH, NUNGA, LICENSING, ENVIRONMENT, EMPLOYMENT, CORONER'S, GAMBLING among the array of specialist courts 

Federal courts hear commonwealth law matters such as tax, family, native title

Matters relating to federal law are heard in Adelaide at the Roma Mitchell Commonwealth Law Courts Building in Angas Street. This includes family law and child support, administrative law, native title, taxation, intellectual property, bankruptcy, consumer protection, human rights, industrial law, privacy law and migration matters. The Federal Circuit Court of Australia shares the Angas Street building with the Family Court of Australia and the Federal Court of Australia.

 

Nunga courts for the sentencing days of Aboriginal defendants bring cultural context

Aboriginal sentencing court days or Nunga courts operate at Port Adelaide, Murray Bridge, Port Augusta, Mount Gambier, Port Lincoln and Ceduna magistrates courts. Aboriginal adult offenders who have pleaded or been found guilty of a criminal offence may choose to be sentenced on an Aboriginal court day. But the 21st Century South Australian court system has been failing to cope, especially in regard to interpreters, with the big rise in Anangu Pitjantjatjara men and women defendants. At 3% of the population, Aboriginal people account for more than a quarter of people in prison. From 2005, Aboriginal court days or Nunga courts have provided Aboriginal defendants with a culturally-appropriate sentencing option. They aim to overcome cultural barriers to understanding the law and court practice.  They seek to build relationships with Aboriginal communities and organisations, reduce offending, and provide outcomes for defendants through medical, mental health and rehabilitation referrals. Sentencing is less formal. All participants (including the magistrate) sit on the same level. Victims, family and community members are encouraged to attend court and take part. Community elders and Aboriginal justice officers advise the magistrate on cultural and community issues. The justice officer guides defendants, families and the community on court process (including reminders of court days/ times) and understanding bail and bonds.

Youth Court hears cases involving 10-17 year olds; also covers child protection and adoption

South Australia was the first Australian jurisdiction to formally establish a separate children’s court in 1895. Currently, criminal offending by juveniles is tried before the Youth Court of South Australia, set up in 1993. The Youth Court, in Wright Street, Adelaide, has a criminal jurisdiction for offenders aged between 10 and 17. It also covers the care and protection of children and adoption matters. The court conducts a family conference diversionary scheme for young offenders.



 

Employment Tribunal in 2017 becomes the one stop for hearing all state industrial disputes

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. 

Robert Sangster, Len King bring modern South Australian liquor licensing court in 1967

The South Australian government has licensed the sale of alcoholic beverages from 1837. Licensing operated through districts with each having its own court where a special magistrate sat once a year to consider local applications. A 1967 royal commission by Robert Sangster QC (later Justice Sangster) and Len King (later chief justice) recommended modernising liquor licensing including a single court for the whole state. The licensing court started in 1967 acted as Sangster expected: “Having all the normal judicial attributes of being a court of record, presided over by a judge or equivalent, dealing with questions before it upon sworn testimony in open hearings, exercising discretions according to judicial practice, and subject in appropriate cases to appeals to higher courts”. In 1985, a liquor licensing commissioner was appointed, with the commissioner and the court becoming licensing authorities with designated powers and responsibilities. When a dedicated licensing court judge retired, the work of the court was given to district court judges at the Sir Samuel Way Building. The administrative support was partly supplied by the district court and by the office of liquor and gambling. Under 1997 legislation, the court hears applications for disciplinary actions, reviews decisions of the commissioner for liquor and gambling and applications referred by the commissioner to the court. Judges specifically assigned to the licensing court assumed control again in 2011 and since then all new matters have been conducted by them at the former industrial relations court at the Riverside Centre.

 

Environment court rules on land use, mining, heritage, water and natural resources

The Environment, Resources and Development Court, set up in 1993, dealing with disputes and enforces laws relating to developing and managing land, the natural and built environment, and natural resources. It hears and determines matters under laws relating to development, heritage, environment protection, natural resources (including water), irrigation, mining and native title. The matters include appeals against the decision of an authority, applications for enforcement orders and orders in injunctions and criminal prosecutions.

Coroner's Court assists to compile data and responses to deaths from domestic violence

The Coroner’s Court has power to inquire into violent, unusual of unknown-case deaths, fires or accidents injuring to a person or property; also the disappearance of a person within the state. Domestic violence-related deaths have become a particular focus of research with the coroner’s office. Coroners have also been outspoken on general issues such as the lack of mental health services in the state. A coroner may reopen an inquest at any time but cannot make any finding, or suggestion, of criminal or civil liability.

 

Helping gamblers one of the specialist areas being developed by magistrates court

A gambler’s intervention program – a first for Australia and maybe the second in the world – is part of the specialist areas within the magistrates court. It is operated by the state-wide gambling therapy service. Other special areas are for drugs, family violence, sentencing Aboriginal people, for persons suffering from mental impairment and for those suffering drug addiction. Family violence courts operate at Adelaide and Elizabeth magistrates courts, that are part of violence intervention managed primarily by the Courts Administration Authority, Salvation Army and government departments.

SEPARATION OF POWERS TESTED IN SOUTH AUSTRALIA

STATE GOVERNMENT AND JUSTICE SYSTEM'S RELATIONSHIP
develops through fraught times such as Nemer and McGee cases

Attorney general and state government backed by the crown solicitor's office advice

The attorney general is the South Australian government’s principal legal advisor and responsible for administration of justice. Backing the attorney-general’s department, the crown solicitor’s office is in effect the law firm for the government of South Australia. The solicitor general, a position held by 21st Century chief justices John Doyle and Chris Kourakis, appears for the state in the high court, the full court of the supreme court, and other courts on instructions from the crown solicitor and director of public prosecutions.

 

Public prosecutions in South Australia made independent from government in 1992

South Australia was the last Australia state or territory to establish an independent director of public prosecutions – in 1992. Before that, major criminal offences were prosecuted by the crown prosecutor’s office, guided by the attorney general’s department. The director of public prosecutions now independently initiates and conducts criminal prosecutions in the magistrates, district and supreme courts of South Australia. The director also initiates and conducts appeals to the full court of South Australian supreme court and the high court of Australia. Since being set up by Labor state attorney general Christopher Sumner, the office of director of public prosecutions in Pirie Street, Adelaide, has grown from about 40 to 140 legal and administrative staff plus witness assistance officers. In 1995, the office employed its first social workers to support victims of crime, their families and witnesses for the prosecution. South Australia’s first three directors of public prosecutions were Paul Rofe QC (1992-2004), Stephen Pallaras QC (2005-12) and Adam Kimber SC (2012-19). South Australian supreme court judge Martin Hinton was appointed to the role for seven years in 2019. The prosecution office’s executive committee decides the strategic direction and responses to the important legal issues. The counsel section prosecutes the most serious criminal pleas and trials in the district and supreme courts. Senior members do appeal work in the court of criminal appeal and in the high court of Australia. The solicitors’ section in the largest within the office and resolves about 80% of files. 

Nemer, McGee cases spark clash of South Australian government, the public and judiciary

The Nemer and McGee cases in the early 21st Century set off a major upheaval between the South Australian government and judiciary, with many side issues. Criminal barrister David Edwardson was a common link for the defence in the Nemer and McGee cases. Lawyer Eugene McGee was acquitted of causing cyclist Ian Humphrey's death by dangerous driving in 2003 but was fined for driving without due care. This led Mike Rann Labor government's roya commission into Ian Humphrey’s death and the McGee trial. In the Paul Nemer case, the government intervened to appeal his sentence of a three-year good behaviour bond over the shooting of newsagent Geoffrey Williams in 2001. When chief justice Doyle heard that Edwardson's appointment as queen's counsel had been blocked by Rann, he withdrew his support for QC appointments for senior crown prosecutor Martin Hinton and industrial lawyer and former Labor Party candidate Tim Stanley. Attorney general Michael Atkinson assured Doyle that Edwardson would be approved as QC by the government. After outcry over the Nemer sentence, the Rann government forced director of public prosecutions Paul Rolfe to appeal the sentence. The supreme court found 2-1 (with chief justice Doyle in the minority) there were errors in sentencing. This led to the supreme court full bench sending Nemer to prison. Solicitor general Chris Kourakis highlighted flaws in the plea bargain between prosecutors and the defence – in a case coloured by Nemer being son of a wealthy Adelaide businessman who hired Lindy Powell QC for his son’s appeal. 

Henry Keough uses law change in 2013 to successfully appeal on basis of new evidence

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

COMMUNITY RIGHTS/LINKS/STANDARDS IN LAW PROTECTED by commissioner, law society/bar association, legal services, JPs

Bruce Lander QC adds commissioner for judicial conduct to his strong ICAC powers

Bruce Lander QC, the Independent Commissioner Against Corruption (ICAC) in South Australia can use new powers to investigate judges without first receiving a complaint and can release reports on judicial misconduct. Lander has been made ­Judicial Conduct Commissioner, parallel to his seven-year term with ICAC. Landner's dual role gives him individual powers beyond other states. Lander is a former justice on the supreme courts of South Australia, Northern Territory and Norfolk Island.

 

Law society and bar association push education, access, standards, discipline

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.

Free first access to law via Legal Services Commission/centres under funding stress

The Legal Services Commission, started in 1977, has a strong volunteer element of lawyers available around the clock to give free legal help but has suffered funding stress in cuts to support by the state government. The commission aims to increase legal access for people who can’t afford  private lawyers. The federal attorney general's department also funds South Australian community legal centres including the Women's Legal Service that is having to turn away hundreds of women due to lack of resources.

 

South Australia's 3000 justices of peace/special justices support legal system in community

The first of what is now a network of 3000 justices of the peace in South Australia was appointed soon after colonial settlement in 1836. Appointed by the attorney general, JPs must be over 18, South Australian residents of good character, understand their duties and powers, and speak English well enough to understand documents and duties. They can't be a bankrupt or disqualified from managing a corporation. They must live or work in an area that requires a JP. Justices of the peace can witness legal documents including statutory declarations and affidavits, waiver rights, search warrants, drug warrants and divorce documents, as well as certifying true copies of a document. Their services are without charge. Notaries public also witness legal documents but primarily documents for use in foreign courts or by foreign authorities. Notaries public can charge for their services. Justices of the Peace Services, part of the attorney-general's department, administers applications, appointments, conduct and removal of justices of the peace. JPs must comply with a code of conduct. This includes not charging a fee, acting within their powers, not divulging confidential information and not having a conflict of interest. They can't administer oaths, witness an instrument or take a declaration from a person they believe does not have proper mental capacity. Complaints about JPs can be made to Justices of the Peace Services. The Royal Association of Justices South Australia advocates for JPs and helps them to develop professionally. The South Australian attorney general has a website to locate justices of the peace.

BACKLOG OF COURT CASES A MAJOR PROBLEM

AFTER BEING RUN BY SHERIFFS, COURTS ENTER MODERN ERA
with challenges involving costs, efficiency and ageing buildings

William Boothby, son of judge Benjamin, among South Australia's posse of sheriffs back to 1837

William Boothby, South Australia’s third sheriff (1856-1903), was a son of the notorious judge Benjamin Boothby. Boosting the prestige of the role of sheriff, Boothby was also responsible for gaols and conducting elections where he refined the secret ballot – a practice followed by many countries. Despite not being a convict colony, South Australia was quick to appoint its first sheriff, Samuel Smart, in 1837 to deal with convicts from Van Diemen’s Land. Today the Office of Sheriff staff continues to look after security and order in the courts.

Authority administers courts with Sheriffs Office doing security and higher-court order

Courts Administration Authority, set up under chief justice Len King (1978-95), runs the physical operations of South Australian justice system for the state government. Within that system, the Sheriff’s Office handles security and order for the supreme and district courts but private contractors are used to transport prisoners to the magistrates court. State Records hold a large collection of supreme court case history and the state attorney general department collects ongoing data on the courts’ efficiency.

 

More online transfers and audio-visual links among tech upgrades for courts efficiency

Laws encouraging the justice system to send documents electronically passed state parliament in 2017 in a move to cut red tape within courts. Another technology being increasingly in the justice system used is audio-visual links. The state attorney general’s department set up the Criminal Justice Sector Reform Council in 2013 for high-level discussions, promoting and supporting an effective and efficient criminal justice system while maintaining justice and integrity.

 

ENERGY, INTEREST AND AMBITION BURST THROUGH CONTROVERSIAL ASPECT OF WIDE CONTRIBUTION

SAMUEL WAY DOMINATES THE SUPREME COURT FOR 40 YEARS
and makes towering impact on South Australian society at large

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