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
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 ON SOUTH AUSTRALIAN SUPREME COURT LEADS TO BOOTHBY'S AMOVAL
ENERGY, AMBITION AND WIDE INTERESTS BURST THROUGH CONTROVERSIAL ASPECTS OF HIS RISE
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 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, 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, 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.
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.
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.
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
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 CHARACTER OF SOUTH AUSTRALIAN LEGAL SYSTEM FROM 19th CENTURY
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.
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 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.
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.
ADELAIDE UNIVERSITY LAW SCHOOL STARTS IN 1883; FLINDERS UNIVERSITY'S IN 1992
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’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
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.
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.
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.
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
ENERGY, INTEREST AND AMBITION BURST THROUGH CONTROVERSIAL ASPECT OF WIDE CONTRIBUTION