Plater, David; Royan, Sangeetha --- "The Development & Application in 19th Century Australia of the Prosecutor's Role as a Minister of Justice: Rhetoric or Reality?" [2012] UTasLawRw 4; (2012) 31(1) University of Tasmania Law Review 78

The Development and Application in Nineteenth Century Australia of the Prosecutor’s Role as a Minister of Justice: Rhetoric or Reality?

DAVID PLATER AND SANGEETHA ROYAN^[∗]

Abstract

The English notion of the proper prosecutorial role as that of the non-partisan ‘minister of justice’ was expressed in Australia by colonial legal practitioners but in practice the application of this role was to often prove a matter of rhetoric rather than of reality. Prosecutors in practice often acted as zealous and partisan advocates. This article considers the development of the prosecutorial role in Australia from 1824 to the early 20th century and, in particular, the extent to which the minister of justice model was applied in Australia. Factors that influenced the perception and performance of the prosecutorial role during this period are examined. It is suggested that colonial prosecutors in practice were motivated by subjective factors such as the class or race of the accused and the nature of the crime that they were charged with. Prosecutorial zeal appears explicable, not by the tension of acting in an adversarial system, but in confronting defendants who were regarded as ‘criminals of the deepest dye’ who posed a real ‘threat’ to colonial society. Though the minister of justice role was applied in Australia on occasion, it was often reserved for ‘respectable’ defendants and to be the apparent product of class bias rather than genuine prosecutorial restraint. Nevertheless, despite the inconsistent development in Australia of the minister of justice role, as the 19th century progressed, it was increasingly applied as a matter of both rhetoric and reality, reflecting the increasing stability and confidence of the Australian colonies.

I INTRODUCTION

In detailing the circumstances of the case, he would confine himself to a mere statement of the facts which he hoped to establish in evidence. God forbid! that he should employ any powers of exaggeration to deepen the guilt of the accused. For his part he held it as a principle that it was not the duty of a public prosecutor, a character in which he stood forth today, to employ means to secure a conviction, but to elicit the truth. And if the jury should, after a full consideration of the whole of this case, be of the opinion that the prisoners were not guilty of the crime imputed to them, he would say, with as much sincerity as his learned friend who defended them, ‘Let them go forth from that bar, for God forbid! that a hair of their heads should be touched unless legal guilt be established by legal proof.’^[1]

These enthusiastic comments on the nature of the prosecutorial role were offered by prosecution counsel, Mr Therry, in the course of his opening address in 1832 in R v Anderson and Others^[2] during the trial of several sailors for mutiny on a convict ship. Therry’s concept of the prosecutorial role accords with the English notion of prosecution counsel as the detached figure of restraint, astute to promote a fair trial and only concerned to seek the truth and unconcerned as to the outcome of the case, the ‘minister of justice’.^[3] Therry, in Anderson at least,^[4] did not view his role as that of the adversarial advocate with an overriding duty to secure the accused’s conviction and in so doing ‘employ any powers of exaggeration to deepen the guilt of the accused.’^[5]

Therry’s perception of the prosecutorial role is unsurprising. By the 1820s the prosecutorial role in England was widely perceived as one of the minister of justice.^[6] The traditional perception of the prosecutorial role as the zealous and partisan advocate solely bent upon securing the conviction of the accused at all costs^[7] had been discarded. The development of the minister of justice concept in England in the early 1800s is explicable by the particular social and historical climate in which it emerged. In the newly adversarial criminal process of the early part of the 19th century,^[8] there was an increasing awareness of the uneven playing field that typically existed between the accused and the State. ‘A criminal trial in those days was not unlike a race between the King and the prisoner, in which the King had a long start and the prisoner was heavily weighted.’^[9] The minister of justice role was just one of a number of legal measures that developed during this period in an attempt to level the unequal positions of the prosecution and defence by improving the defendant’s situation.^[10] An objective prosecution counsel was to alleviate the ill effects of both the restrictions placed on the ability of defence counsel in cases of felony to fully represent the accused at trial and address the jury,^[11] and the potentially partisan and tainted agenda^[12] of the private prosecutors who, rather than any public agency, were responsible for the institution and conduct of most criminal proceedings.^[13]

The notion of the prosecutor as the restrained minister of justice was firmly established in England by the 1820s. By this period, as Cairns notes, ‘[t]he existence of such a duty of restraint was not doubted, though some remarked upon its recent origin.’^[14] An English Member of Parliament in 1824 observed that prosecution counsel ‘felt himself bound by an obligation stronger than the law – the obligation of honour and mercy – a deference to the court, and a regard to the opinion of his brother barristers’ to offer only a bland and colourless opening statement and to make no effort to aggravate the prosecution case.^[15] There was a clear emphasis on the prosecutor’s role in aiding the administration of justice and promoting fairness, rather than in simply seeking the conviction of the accused. Even in a ‘society radically divided between the rich and the poor, the powerful and the powerless’^[16] (as England clearly was during this period), the prosecutorial role of minister of justice did not discriminate towards defendants, either in terms of their social standing or the charges that they faced.^[17] This role was demonstrated in the prosecution of crimes that may have attracted a degree of sympathy,^[18] as well as those of the utmost gravity committed in highly charged circumstances.^[19]

It is of particular significance, in light of both the experience during the earlier English State Trials^[20] and the experience in Australia during this period,^[21] that even crimes ‘beyond the pale’ that may have been perceived as challenging the established social or political order were also prosecuted in a restrained manner,^[22] although this was not always the case.^[23] The observation of prosecution counsel, Sergeant Toddy, during a manslaughter trial^[24] in 1824 that, ‘[t]he persons concerned in the prosecution had no object in view but the attainment and furtherment of public justice and let the verdict of the jury be what it might, they would be satisfied’^[25] seems largely, though not universally,^[26] to represent the approach of prosecution counsel in England during this period.^[27]

The development (or at least confirmation)^[28] in England by the 1820s of the minister of justice concept raises the largely overlooked question of how the role of the prosecuting lawyer was perceived and applied within the context of the Australian colonial jurisdictions in the 19th century. Did the English model of a minister of justice apply unchanged in Australia, as precedent and custom might suggest, or was a distinctly Australian prosecutorial model to evolve reflecting local conditions and circumstances?

The logical starting point for tracing the development of the prosecutorial role in Australia is the establishment of the Supreme Courts of Van Diemen’s Land and New South Wales in 1824. One might have presumed that the English model of a minister of justice, which was already firmly established in England by this time, would have been imported into the Australia colonies. However, this was not the case. Analysis of the historical development in Australia of the prosecutor’s role shows that adherence to the minister of justice concept had a chequered history. At times it was abandoned in favour of that of the partisan advocate. At other times it was scrupulously observed. In the period immediately following 1824 until the mid 1800s, prosecution counsel’s adherence to the minister of justice concept was on a selective and inconsistent basis. It appears to have been often, though by no means always, manifest in cases involving ‘respectable’ accused.

There are a number of factors that explain the early development of the prosecutorial role in Australia. It might be thought that the newly adversarial model for criminal justice that was transplanted to Australia provided a temptation for prosecutors to assume the mantle of the partisan advocate as opposed to the detached minister of justice. There is an acute potential tension in the dual prosecutorial roles – as active advocate in an adversarial system with a legitimate and vital role in seeking the conviction of the accused and as restrained minister of justice only concerned to promote justice and secure the truth.^[29] This tension was manifest in such famous 19th century English cases as R v Palmer.^[30] However, any such tension did not prevent the confirmation in England of the unchallenged notion of the prosecutor as a minister of justice.^[31] The apparent tension in the dual prosecutorial roles did not significantly influence the development of the prosecutorial role in Australia either. Rather the explanation for the early development of the prosecutorial role in Australia lies with other factors.

It is our argument that, in terms of their approach at trial, prosecutors were influenced by subjective factors, namely the background and position of the accused, the nature of the crime with which they were charged and the nature of colonial society. The respectable or high social standing of an accused did, on occasion, influence the prosecutor to adopt a moderate stance. This appears to have been particularly evident in the early years of the colonies when, as Hughes notes, ‘the question of class was all-pervasive and pathological.’^[32] In such a small and stratified society, any accused of high social standing was likely to be known in some capacity to counsel and/or the bench.^[33] In contrast, the adversarial approach by prosecution counsel was prompted to a real extent by the nature of colonial society at that time. It is simplistic to categorise early Australian colonial society as merely a brutal convict colony given that aspects of the rule of law were evident from the outset of British colonisation.^[34] Nevertheless, one must have regard to the strong fear factor that was present in the newly established colonies, whether from convicts, bushrangers, Aborigines, Irish political exiles or other offenders such as sexual offenders. All were perceived as posing a real threat to the then insecure fabric of colonial society. The need to maintain order and deter such ‘enemies of society’ had a strong impact on the development of the prosecutorial role in Australia and, compared with England,^[35] delayed the emergence of the minister of justice model.

The development of the prosecutorial role in Australia was therefore influenced in practice by such factors as the social class and race of the accused and the perceived need to make an example out of certain classes of offenders who were regarded as representing a threat to the tenuous stability of the newly established colonies. Though these prosecutorial traits were not unknown in England,^[36] it is suggested that they appear to have been more explicit and pronounced in colonial Australia. The prosecutorial role of a minister of justice emerged slowly and unevenly in practice in Australia, compared with England. However, the role became established in the colonies, both as a matter of rhetoric and reality, as Australia gradually retreated from the frontier and colonial mentality and grew a sense of security and social stability.

II METHODOLOGY

The original source of the prosecutorial duty of restraint in England was that of unwritten practice and professional etiquette, and appeared to operate on a case-by-case basis.^[37] However, the minister of justice role was later declared in explicit terms by the English courts in various reported decisions.^[38] By way of contrast, there is almost a complete lack of reported authority on the development of the prosecutorial role in 19th century Australia.^[39] The press reports of the period of criminal trials, however, provide a valuable, though previously somewhat overlooked, source of historical reference.^[40] In the absence of formally reported decisions, all the press extracts of court proceedings compiled and published by the School of History and Classics, University of Tasmania and the Division of Law, Macquarie University in respect of the period from 1824 to 1843 have been studied.^[41] In respect to the period after 1843, it was not logistically possible to examine every Australian newspaper and journal for the purposes of this article.^[42] Rather, leading trials^[43] and routine criminal cases^[44] were studied to see if any themes emerged as to the prosecutorial role of this period.^[45] The leading or sensational criminal trials provide a suitable yardstick by which to measure the prosecutorial role in 19th century Australia because they involved the challenge of prosecuting grave crimes, which often gave rise to strong community passion. These cases are the ones most likely to reveal how prosecutors of the period perceived and performed their role.

In the absence of any Australian judicial declaration of the role, the press reports of these criminal trials provide crucial insight into the understanding of the prosecutorial role in colonial Australia. These trial reports illustrate the perception and performance of the prosecutorial role, most notably by the prosecutors themselves. Therefore, it is from the words and deeds, the practice so to speak, of prosecution counsel at trial that one is best able to consider the early development of the prosecutorial role in Australia.^[46]

III THE EVOLUTION OF THE PROSECUTORIAL ROLE IN 19TH CENTURY AUSTRALIA

The logical starting point in examining the development of the prosecutorial role in Australia is by examining the establishment of the Supreme Courts of Tasmania and New South Wales in 1824. The introduction of these courts created a suitable forum in which the practical operation of the prosecutorial role in Australia could be measured. Prior to 1824 the colonies were strictly of a military and penal character and it is clear that both criminal justice and the specific role of the prosecuting lawyer functioned on a simplistic and ‘rough and ready’ level. There was no need, as Castles observes, for a complex legal system ‘in a small struggling colony in which a battle of survival was to be of paramount importance, at least in the earliest years.’^[47] Such a backdrop afforded little assistance in fostering the development and scope of the early prosecutorial role in Australia as a minister of justice or otherwise.^[48]

The prosecutorial role in England by the 1820s was that of the non-partisan figure of restraint.^[49] Given Australia’s colonial status in the 1800s, the British^[50] background of colonial prosecutors and the adoption by the Australian colonies of the law of England in 1828,^[51] one might have assumed that the prevailing English prosecutorial role would have applied in Australia. However, the laws and practices of England did not necessarily apply unchanged in Australia.^[52] In R v Farrell and Others^[53] in 1831 Dowling J highlighted the unique position of New South Wales within the British Empire owing to its inhabitants and the relations produced in the course of its convict society. On account of the ‘local difficulties and peculiarities’ arising from such an unusual society, Dowling J noted that he and his brother judges of the New South Wales Supreme Court had found themselves constantly obstructed in ‘endeavouring to apply even some of the fundamental principles of the common law of England.’^[54] Dowling J observed that he and his fellow judges had ‘been compelled to lay down principles, and adopt resolutions, which would perhaps startle a lawyer in Westminster Hall, but which they have been driven to resort to in order to meet the exigences [sic] of society’ in New South Wales.^[55]

The differences in law and practice between England and Australia in the 1800s extend to the criminal jurisdiction. As Kidston noted in 1958:

We still follow paths which England has ceased to tread, and have broken some new ground for our doing. On the criminal side this has happened both...not only in substantive but also in adjective law, for example in the processes of prosecution.^[56]

There were marked disparities between the criminal procedures of Australia and England in the 1800s in relation to such major issues of practice as the roles of the private prosecutor^[57] and the grand jury.^[58] Therefore, in theory at least, it may have been open for a different prosecutorial role to evolve in Australia reflecting local conditions and circumstances than had developed in England by the 1820s.

Although there was no clear judicial statement about the prosecutor’s duty in the 1800s in Australia, as there was in England,^[59] one can nevertheless find some judicial acknowledgement of this concept. In a murder case in 1832, Dowling J praised the manner in which Solicitor-General, Mr. McDowell, had opened the prosecution case asserting that this typified the candour and fairness with which he had discharged his office.^[60] Dowling J expressed regret at rumours of the Solicitor-General’s impending departure and observed that McDowell had met ‘the confidence of those who wished to witness justice administered with an honourable regard to the interest of the Crown and a humane feeling for the condition of the prisoner.’^[61]

One can also find both prosecution and defence counsel in Australia referring in similar terms to the expectations of the prosecutorial role. As early as 1827, the Attorney-General of New South Wales when appearing in a private capacity^[62] in R v Horan,^[63] made it clear that he was appearing ‘as an advocate, and not as his duty most commonly requires, as a prosecutor.’^[64] In the same year in R v Wardell (No 2),^[65] the Attorney-General explained that ‘he had no feeling in the case other than a wish that justice (as far as justice could) should be done.’^[66] This theme was developed, as previously mentioned, by Mr. Therry in R v Anderson and Others.^[67] Therry reiterated this approach in 1842 in R v Jones and Others,^[68] declaring that his role was simply to present to the jury ‘a plain statement of the facts’ and ‘it was not his duty to hunt the prisoners down by a vindictive prosecution but to bring before the jury a full and impartial statement of the whole case.’^[69] Similarly, this conception of the prosecutorial role was expressed in R v Davidson^[70] in 1841 by the Solicitor-General:

The character in which he represented the Crown was not one of vengeance, nor was he dispensing of justice, neither was he an advocate in the ordinary sense of the word. It was not his duty to make nice distinctions, nor by subtle arguments to strain a case against a prisoner, but simply to bring it before the jury...As Crown Prosecutor he would always have the right of reply, whether witnesses were called for the prisoner or not, but this was a course which he would always exercise very tenderly.^[71]

A similar view was both expressed and demonstrated by the Tasmanian Attorney-General in R v Sparks and Campbell^[72] in 1843. The two defendants were aged only 14 and 16. They were inmates at the juvenile prison at Point Puer and had allegedly murdered the prison’s overseer. In his opening address to the jury, the Attorney-General frankly conceded his doubts about the strength of the prosecution case and the difficultly that he had encountered in arriving at any satisfactory conclusion in the manner at which the deceased had met his death.^[73] He emphasised the ‘extraordinary discrepancy’ in the prosecution’s case and drew the jury’s attention to the ‘manifest discrepancies’ in the accounts of the four main Crown witnesses.^[74]

The Attorney-General professed his concern that further evidence had come to light since committal (which he had supplied to defence counsel).^[75] As a result of that further evidence and to ensure that the jury had the whole picture before them, the Attorney called a witness purely for the defence to cross-examine.^[76] Defence counsel, in his closing address, commended the Attorney-General for the manner in which he had introduced and conducted the entire prosecution case,^[77] and, in particular, for his ‘fairness and candour’.^[78] Both accused were acquitted. The Attorney-General in demonstrating an awareness of his role as a minister of justice, was at pains to ensure that both the jury and the defence were not kept in the dark with regards to any material witness or other evidence.^[79]

Defence counsel can also be found referring to the prosecutorial role in similar terms. In 1868, during the retrial of the ‘Rokewood Murder,’^[80] defence counsel complained in his opening address of the absence at the retrial of witnesses who might have contradicted the incriminating evidence of a police constable.^[81] Defence counsel contended, ‘It was the duty of the Crown not to seek to get a conviction, but to establish the truth – to punish the perpetrator of the deed, but not the man who had been the victim of a series of mistakes.’^[82]

However, such declarations do not wholly represent the reality of prosecution practice in Australia in the 1800s. In many cases the English notion of the minister of justice was to prove less a matter of reality than of rhetoric. Although the English notion of the prosecutor as a minister of justice was to receive belated explicit judicial approval in Australia, this was not until 1946.^[83]

IV PROSECUTORIAL RESTRAINT IN 1800S AUSTRALIA: MINISTER OF JUSTICE OR CLASS BIAS?

In 1837 the Attorney-General, Joseph Plunkett, in R v Donnison^[84] during the trial of a Magistrate for the alleged theft of cattle, declared that he would approach the case without any undue deference to the accused’s position. He stated that when a prima facie case appeared to him upon the depositions of the prosecution witnesses ‘of course a gentleman was no more entitled to respect than a poor man.’^[85] Plunkett hoped that the time would never come ‘when it could be said of this Colony as an eminent lawyer... had once said of Ireland, ‘there is one law for the rich and one law for the poor.’^[86] However, not all prosecutors proved as impartial as Plunkett had declared in Donnison. An examination of the period from 1824 to the middle of the 19th century reveals that the status of the accused could have a very real impact on the manner in which the prosecuting lawyer discharged his role.

There is no doubt that a scrutiny of the earliest criminal trials to come before the new Supreme Courts reveals many instances of prosecution counsel adhering to the English notion of the figure of restraint regardless of the standing of the accused or the nature of the alleged crime.^[87] Nevertheless, this approach was unevenly observed. There was a recurring coincidence in Australia, unlike the apparent practice in England,^[88] between this restrained approach and the elevated status of the accused. In R v Lord^[89] in Tasmania in 1834, for example, the accused was charged with the misappropriation of government property while acting as the commandant of the convict station at Maria Island. At trial, the Solicitor-General appealed to the jury to arrive at a ‘calm, deliberate and conscientious verdict’ and to dismiss any ‘scandalous rumours’ prejudicial to the accused that they may have heard.^[90] The Solicitor-General concluded his opening address with the following exhortation:

If anything approaching to a doubt should remain on the minds of the Jury after hearing the evidence he should produce, he would say that none of the highly respectable witnesses and friends of Major Lord who had been subpoenaed for the defence, would be more gratified than himself if the Jury could say that Major Lord was not guilty.^[91]

Indeed, so conspicuous was the restraint with which the Solicitor-General conducted the prosecution case that the editor of the Colonist felt compelled to observe that ‘on this occasion the learned Gentleman seems to have changed his nature, or to have fancied he was pleading for, instead of against the accused.’^[92] The editor, not wishing to ‘condemn a public prosecutor for leaning to the side of mercy,’ could not help but contrast the Solicitor-General’s benign approach in Lord with the ‘bitterness’ with which he usually conducted the prosecution case and suggested that it ‘would be far more congenial to our ideas of propriety, as well as more in character with the spirit of English law, if public prosecutors always refrained from prejudicing the case of the accused’ in any address to the jury.^[93]

Though not explicitly suggested by the editor, the Solicitor-General’s concluding remarks raise more than a suspicion that Major Lord’s respectable standing explained the prosecutor’s moderate approach. This case and others considered below suggest that the recourse by prosecution counsel to notions of restraint and fairness was often a convenient cloak to disguise the apparent sympathy with which he might conduct the prosecution case, typically where the accused was a fellow ‘gentleman’. What the prosecutor in Lord was demonstrating was not moderation due to his role as a minister of justice but rather preferential treatment by one ‘gentleman’ of another under the guise of prosecutorial restraint.

Lord was to prove far from a unique case during the period. Military officers,^[94] surgeons,^[95] landowners^[96] and Magistrates^[97] were amongst the class of ‘respectable’ defendants who might also benefit from similar prosecutorial restraint, if not outright benevolence as at the trial in 1842 of the son of a landowner of ‘high standing’ for killing a neighbour’s horse, where the Attorney-General effectively acted as co-defence counsel.^[98] In some cases prosecution counsel might even profess their ‘greatest reluctance’^[99] or how ‘repugnant to his feelings’ ^[100] it had proved to have been compelled to bring the case to trial, or indeed, as Mr. Wentworth declared at the trial of Captain Wright in 1829 for ordering the killing of a convict at Norfolk Island, ‘with great truth...the conducting of this prosecution, is the most painful duty that has devolved on me since the commencement of my professional career’.^[101]

The case of R v Bingle and Were^[102] in 1837 demonstrates such apparent prosecutorial sympathy.^[103] A Magistrate was charged with the theft of cattle. The case had apparent political overtones^[104] and the Attorney-General was at pains to assure the jury that in ‘the exercise of his duty he would make no difference between a gentleman and the meanest person in the Colony.’^[105] However, he then proceeded to belie these sentiments in his opening address. He noted that the charge of cattle stealing was always a most serious charge when brought even against persons in the lowest station of life;^[106] ‘but when brought against gentlemen – men moving in a respectable sphere of life, one of whom held the honourable and responsible office of a Justice of the Peace – men of large fortune – the jury had a most important duty to perform in investigating it.’^[107] The Attorney noted that there should be strong evidence given before the charge could even be entertained, ‘to rebut the presumption that men holding the character of gentlemen must be above the low and mean feelings which actuate the minds of those who are guilty of the crime of cattle-stealing, especially when they were men of large fortune, and the causes that often led to the commission of crime could not be supposed to operate.’^[108] When all the circumstances of the case were combined, it would require strong evidence indeed to rebut a defendant’s presumed innocence. The Attorney professed his sorrow to put forward any case on the testimony of prisoners of the Crown but ‘the circumstances of the Colony required that persons should be admitted into the witness-box who would not be admitted in England.’^[109] However, that should make the jury all the more circumspect in examining such evidence. The Attorney concluded by emphasising, ‘Many of the witnesses were gentlemen, and if they had any feeling in the case it must be in favour of the prisoners, who were gentlemen.’^[110]

Cases such as Lord and Bingle and Were appear to demonstrate that prosecutorial restraint extended to ‘gentlemen’, respectable men of standing in the relatively closed confines of early Australian colonial society. This appears to have owed more to favouritism than to any unbiased adherence to any overarching concept of the prosecutor as a minister of justice.

Although prosecutorial restraint was clearly shown in favour of ‘respectable’ defendants, it is acknowledged that such moderation was not confined to the prosecution of ‘gentlemen’. Even the most unlikely of defendants might, on occasion, benefit from prosecutorial restraint at trial. In the notorious 1824 case of R v Pearce,^[111] for example, one of the first cases to come before the Supreme Court of Tasmania, the Attorney-General acted in accordance with notions of prosecutorial dispassion and restraint. The accused was charged with the murder of a fellow convict called Cox whom he had killed and then roasted and consumed during an ill-fated effort to escape from Macquarie Harbour. Despite the horrific nature of the case, the Attorney-General entreated the jury ‘to dismiss from their minds all previous impressions against the prisoner: as however justly their hearts must execrate the fell enormities imputed to him, they should duteously [sic] judge him, not by rumours – but by indisputable evidence.’^[112]

Even an Aboriginal defendant accused of offences relating to a white victim might benefit from an apparent fairness and empathy^[113] that was not always manifest in the prosecution of Aboriginal defendants.^[114] In R v Boatman for example,^[115] the accused was charged with the theft of sheep from a white settler.^[116] In this period, such a crime would have ordinarily attracted a stern prosecutorial approach.^[117] However, in this case the Solicitor-General acted with conspicuous fairness, even to the point of dropping the case after Boatman had been convicted.^[118]

Such fairness was even more apparent in R v Billy.^[119] The defendant was an Aboriginal man on trial for the murder of a white man. The Attorney-General, John Plunkett, not only suggested that Billy should be legally represented but opened the Crown case by explaining that ‘there were no cases of a more painful description than those against the Aborigines, who, from their ignorance of our language, manners and customs, as well as of our laws, could only take their trial at a disadvantage, as the state of the law prevented them from calling on others of their tribe to give evidence in their defence.’^[120] Plunkett further acknowledged that it was often the case that alleged acts of ‘aggression’ by Aborigines were, in fact, a response to initial crimes or provocation committed by white inhabitants through their ‘carrying off the gins of these blacks’ or otherwise annoying them.^[121]

From the 1820s onwards, the prosecuting lawyer in Australia was capable of demonstrating the same restraint that had come to distinguish the prosecutorial role in England.^[122] Even an Aboriginal defendant accused of the murder of a white man as in Billy or a notorious escaped convict in a case such as Pearce accused of murder and cannibalism might benefit from prosecutorial moderation.^[123] However, prosecutorial restraint appears to have favoured privileged defendants who occupied positions of respectability in early colonial society, with prosecutors even going as far as expressing their reluctance to have preferred charges. In these cases the prosecutor was not so much acting as a judicious minister of justice but rather was demonstrating partiality towards a fellow ‘gentleman’. The prosecutorial adoption of the minister of justice role appears in practice in early colonial Australia to have been selective and, as will be shown in the next Part, not all defendants could expect to benefit from the restraints of such a role.

V PROSECUTORIAL ZEAL ON DISPLAY IN AUSTRALIA: THE NEED TO SET AN EXAMPLE IN CONFRONTING AN ‘ENEMY OF SOCIETY’? BUSHRANGERS

The confidence of various authors that the minister of justice role was faithfully followed in the 1800s,^[124] can be shown to have been misplaced in practice in colonial Australia. Until well into the second half of the 1800s, one can find clear instances of prosecution counsel ignoring any convention of restraint, and vigorously urging the conviction of the accused. In the context of colonial Australia, this enthusiasm appears to have been most evident in respect of defendants such as bushrangers, convicts, political offenders, Aborigines and rapists or other kinds of sexual offenders. Why were such offenders deemed worthy of prosecutorial fervour in Australia when ‘respectable’ defendants in other cases such as Lord and Bingle and Were were not? Two factors appear to have been significant. First, there appears to have been in practice a distinct prosecutorial bias in favour of defendants who were regarded as ‘gentlemen’. Secondly, one must have regard to the ‘fear’ factor so prevalent in early colonial society. As one commentator remarked in 1835, ‘In no country is life so insecure as in this.’^[125] Aside from feeling a sense of isolation from Britain, early colonial society also felt itself under a very real threat, especially, though by no means exclusively (Aboriginal offenders were also seen as a real threat),^[126] from bushrangers.^[127] Further, in a society so heavily composed of convicts,^[128] there was an underlying fear that there would be a breakdown of, what was described by Deputy Advocate-General Wilde in 1821 as, the ‘sense of Restraint and Coercion, which may be urged to keep the Prisoners of the Crown, so comparatively numerous here, in proper awe and subjugation.’^[129] The acute sense of isolation and threat in early colonial society explains why certain offenders were regarded as posing not just a challenge to the maintenance of colonial law and order, but also as a real threat to the very existence of colonial society.

Whilst there were cases in England in the 1790s and 1800s where prosecution counsel appear to have acted with similar zeal in confronting defendants whose alleged crimes may have challenged the established social order,^[130] our research suggests that this trend was more explicit and pronounced in Australia than in England.^[131] For certain offenders, the adoption by the prosecutor of a partisan and zealous role was seen as not only justified but also as necessary. Although a range of defendants in Australia might find themselves at risk of prosecutorial zeal, this enthusiasm was most evident for defendants who were charged with offences that were regarded as especially ‘beyond the pale’ and as representing a particular threat to colonial society. Though convicts, political offenders, Aborigines and rapists were often regarded in these stark terms, it was bushrangers who appear to have been viewed by both colonial society and prosecutors as posing the greatest threat to early society and therefore to be most deserving of prosecutorial zeal.

This point was made clear in 1824 in R v Thompson and Others.^[132] In this case the defendants were convicts who had committed further offences in Tasmania and had been ‘banished’ to the notorious penal station at Macquarie Harbour from which they had escaped. They had subsequently committed various robberies as bushrangers.^[133] The Attorney-General lamented the fact that crime was increasing in the Colony ‘faster than law could record or justice pursue.’^[134] He asserted that he ‘would not state anything in needless aggravation’^[135] of the defendants but then proceeded to contradict this assertion with the following exhortation:

...he must be permitted to contend that if he proved that guilt, and it were suffered to escape condign punishment, then would the property and even lives of all the respectable community be endangered...It really was not to be indured [sic] that public tranquility should be outraged, and the repose of individuals destroyed by callous desperadoes, who, from previous escapes, through judicial lenity, seemed encouraged to perpetrate further misdeeds, and have an ignominious end, rather than ‘to turn from their wickedness, and live’.^[136]

In R v Stanley and Tullis^[137] in 1841 the Attorney-General went even further and urged the jury to make an example of two alleged bushrangers and not to be dissuaded in their task by the fact that the defendants faced a capital offence of robbery under arms. The Attorney ‘repudiated the indulgence of any sickly affection respecting capital punishment, or the influence of any sickly sentimental feelings on the mind of the jury.’^[138] He further stressed that the government was determined to enforce the law, emphasising the need for protection for the settlers from persons ‘roaming about the colony, committing acts of violence’.^[139]

A similar theme is evident in R v Shea and Others^[140] during the trial of several bushrangers who were charged with murder. The Attorney-General took the opportunity to emphasise the need to make an example of such offenders.^[141] He proclaimed his indignation that the prisoners, who had been originally transported to Australia as convicts, had abused ‘a leniency and a kindness unknown to the law except in modern times, a leniency and kindness which they had no right to expect’ and had ventured beyond the ‘pale of the law’ by again embracing a life of crime.^[142] He hoped that the result of the case would be the gallows and that this would act as a salutary deterrent to any other like-minded individuals.

Similar prosecutorial indignation was also manifest in R v Dalton and Kelly^[143] in 1853. The two accused were convicts who had committed many further crimes after their arrival in Australia.^[144] The two had escaped from Port Arthur and upon becoming bushrangers had committed several further crimes, including the murder of a police constable during a robbery of Simeon Lord, a prominent merchant and Magistrate, at his home.^[145] Dalton and Kelly had then hijacked a boat at gunpoint to flee from Tasmania to Victoria. They were arrested in Melbourne and were returned to Tasmania where they stood trial for the constable’s murder. They were described by one columnist as ‘the two most hardened ruffians, seemingly proud of the distinction which their horrible crimes have earned for them.’^[146] It is unsurprising that the Attorney-General, in confronting such defendants, proved anything other than a model of restraint. He declared that the circumstances of the prosecution case ‘would disclose a state of things which he hoped was without a parallel in the history of the Colony – a state of things in which the whole establishment of one of the most respectable colonists was placed for hours in a state of terror, not one of that establishment knowing at what time was secure.’^[147]

The case of the famous outlaw, ‘Ned’ Kelly, can be seen in a similar light of the prosecution seeking to make an example of a notorious bushranger.^[148] Kelly was charged with the murder of a police constable arising from an incident in which three police officers had been murdered. The highly publicised^[149] criminal activities of Kelly and his gang had clearly alarmed the Victorian authorities.^[150] This might explain why the prosecution lawyers appear to have discarded any notion of detached restraint in the conduct of the case. As Keneally notes, ‘The Crown appeared to be thirsting for Ned Kelly’s blood.’^[151]

This prosecution partisanship was manifest from the committal proceedings.^[152] During the highly-charged^[153] proceedings, the Crown Solicitor questioned the right of Kelly’s lawyer, Mr. Gaunson, to even be present on Kelly’s behalf. The ensuing exchange between the opposing lawyers prompted Gaunson to predict that, optimistically as events would transpire, ‘If this is to be the style of the prosecution, the prisoner will be acquitted.’^[154]

The Crown’s determination to secure a conviction was also evident at Kelly’s trial.^[155] From the beginning of the prosecutor’s opening address, ‘The fact that Ned Kelly was on trial not for murder of a policeman, but as an enemy of society, was made very clear.’^[156] In closing his case, prosecution counsel vehemently urged the jury to reject Kelly’s defence that he may have been acting in self-defence and branded Kelly an ‘assassin’ and a coward who had been ‘leading a wild lawless life, and was at war with society.’^[157] Kelly was motivated by a ‘malignant hatred against the police’ and appeared to ‘glory’ in his murder of the officers.^[158]

The zeal with which counsel undertook the prosecution of bushrangers in cases such as Thompson, Shea and Kelly was not unusual.^[159] Such immoderation may be explained by the fact that the ‘outrages’^[160] of the bushrangers posed a major and recurring threat to law and order throughout not only the early colonial period but also well into the second half of the 1800s.^[161] Bushrangers were regarded as more than mere outlaws and on more than one occasion represented a real menace to the entire social order in colonial society.^[162] In Tasmania they became a real ‘social force’.^[163] Indeed, until 1826, their long ‘predatory career’^[164] had threatened the ‘most serious consequences’^[165] to ‘the best interests of this infant Colony.’^[166] The settlers and officials ‘were sure the convict population was ready to rise and join the bushrangers, consigning Van Dieman’s Land to anarchy.’^[167] Boyce asserts that the fears held by the authorities as to the extent of the threat posed by bushrangers to Tasmania ‘is not 19^th century hyperbole.’^[168] Similarly, the activities of bushrangers in New South Wales were a source of recurring concern that extended beyond their challenge to law and order or threat to the livelihoods of certain sectors of society.^[169] As Hughes notes, whilst the worst of the bushrangers had been suppressed in Tasmania, in New South Wales ‘the bandits continued to pillage and present their threats to the law, reminding convicts and awakening the fears of their masters that chains were made to be broken.’^[170] Similar fears remained in Tasmania.^[171] In brief, ‘In dealing with bushrangers, the Government was not just putting down cutthroats. It was proving that it was in fact the Government.’^[172]

VI CONVICTS

Convicts were also regarded as a real threat to colonial society^[173] that justified a robust prosecutorial approach. There was a sense that the ‘respectable’ classes in colonial Australia were beset with criminals and crime. As Montagu J in 1847 observed, during the trial for burglary with violence of a former convict from Port Arthur, ‘We are surrounded with thieves, burglars and other offenders of the deepest criminality.’^[174] His Honour, in a far from flattering description of Tasmania, considered, ‘A worse community with especial reference to the very large population of the convict population never existed on the face of the globe than in this island, at all events never in the history of modern times.’^[175] Given this fact, it was considered necessary to maintain, as Wilde described, ‘proper awe and subjugation’.^[176] ‘Prison discipline’, as was noted by Burton J, ‘was a theme harped upon from one side of the Colony to the other.’^[177] ‘A large portion of the population of this Colony’ was there under compulsion, as the Chief Justice observed in R v Davies.^[178] He continued, ‘Great difficulties often occur in the management of the convict population in the interior; but the most effectual method to deal with them is to let them feel the arm of the law is strong enough to coerce them.’^[179]

In particular it was of the utmost importance, in a society composed so heavily of convicts or former convicts, to deter them from committing further offences. In R v Reid and Lancaster,^[180] for example, the defendants were not only absconded convicts but were further charged under a recent colonial ordinance providing it to be a capital offence for escaped convicts to use or possess firearms. The Attorney-General ‘considered that the present state of the Colony rendered it imperative on him to enforce the law in this case to its full extent.’^[181]

This theme was also manifest in 1832 in R v Oxley.^[182] The accused was a convict charged with escape from a prison hulk. Though this might not seem to have been the most serious crime in the Tasmanian criminal calendar, the consequences of having convicts escape and subsequently committing further crimes, especially that of bushranging, were obvious in a strict penal colony.^[183] The Attorney-General in Oxley passionately implored the jury to make an example of the accused:

It is high time that an effective check should be put to the desperate and lawless proceedings of persons of the prisoner’s description in a penal Colony like this, surrounded as we are by the most abandoned characters. What safety can be there for lives or property? When I reflect on the situation which I hold, it is astonishing how my life or my house is safe among them – men whom it appears spend their time in planning schemes of escape and plunder, and who evade the watchfulness of the most vigilant guards.^[184]

The threat of the commission of further crimes by convicts was not the sole issue that troubled colonial society. The ever present spectre that always loomed large in colonial society was, as Hughes notes, ‘a jacquerie, the convicts’ revolt that had figured in the nightmares of Australian settlers and governors since the Irish rose at Toongabbie in 1804.’^[185] Thus in relation to the prosecution of such convicts one observes a passion at odds with any prosecutorial role as the restrained minister of justice. This theme is strongly present in R v Benson and Others.^[186] The accused were assigned convict servants and had allegedly robbed and murdered their master at home.^[187] They were charged with not only murder but with the peculiar offence of the period of petit treason.^[188] At trial the Solicitor-General ‘elaborately delineated’^[189] the prosecution case and sought divine inspiration in urging the jury to return a guilty verdict, describing it as ‘an act of such intense enormity, as to elicit the declaration of the Divine Law, which solemnly testifies ‘whose sheddeth man’s blood shall his blood be shed.’^[190]

In 1834 in R v Douglas and Others^[191] the defendants were convicts who faced charges arising from a violent revolt on Norfolk Island that left several convicts and guards dead.^[192] The prosecutor declared his relief at the failure of the plot but such must be the fate of any such conspiracy ‘where the projectors are bad men combining together for wicked a purpose, and having opposed to them the brave men who compose the soldiery, and who fight in a good cause.’^[193] Similar enthusiasm is evident in the trials in Victoria in 1857 of a number of convicts who were accused of the ‘barbarous and cruel murder’^[194] of John Price, the Superintendent of Victoria’s prisons and the notorious former governor at Norfolk Island, during a prison riot. In one of the trials, the Solicitor-General noted that the prosecutor’s duty was to ‘make the evidence as complete as possible’ and reminded the jury that they had a ‘duty of mercy to perform to society, which must be protected from the commission of such terrible crimes’^[195] as those alleged against the prisoners.

In contrast to the cases discussed above in Part 4 such as Lord and Bingle and Were, the defendants in cases such as Douglas, Oxley and Shea were not ‘gentlemen’ and were additionally regarded by prosecution counsel as belonging to a class of offenders who posed a real threat, not just to law and order, but potentially to the very existence of colonial society.

VII POLITICAL OFFENDERS

Political offenders may have also fallen into the category of defendants regarded as enemies of society. Once again there was a declared need to make an example of such offenders. This emerges in the series of prosecutions instituted during the tenure of Governor Darling from 1827 to 1831 which arose from the strong and allegedly seditious press criticisms of Darling’s autocratic administration.^[196] This was particularly evident in the prosecution of Dr. Wardell, a leading colonial lawyer and editor of The Australian, for seditious libel.^[197] The Attorney-General’s assertion that ‘I have no feeling whatever, other than that justice should be done’^[198] is belied by the zealous approach assumed by him and his colleagues at Wardell’s two trials.

In R v Wardell (No 2),^[199] the accused faced charges of seditious libel arising from his criticism of the Governor as an ‘ignorant and obstinate man’.^[200] The assertion of The Australian that the prosecution’s anxiety to secure a conviction was ‘palpable’ and ‘extreme’^[201] cannot be dismissed as mere rhetoric. Whilst Wardell appeared alone, the prosecution were represented in full force by the Attorney-General, the Solicitor-General and a former Attorney-General.^[202]

The prosecution at trial appears to have left no ‘stone unturned’ in its efforts to secure a conviction. The Attorney-General articulated, in his opening address to the military jury,^[203] why Wardell’s comments were seen as provocative in the Colony, namely because ‘the prison population was so great as compared with the free population.’^[204] This theme was continued by the Solicitor-General who insisted, over Wardell’s objections and the evident unease of the Chief Justice,^[205] in making an impassioned closing address and securing the all-important last word with the jury.^[206] The Solicitor-General claimed that ‘the licentiousness of the press, the state of Society, and the lacerated feelings of numbers of public and private men who feared the press’ had left the authorities with no option but to intervene and asserted that ‘the welfare, the well-being, nay the very existence of the Colony’ depended upon the jury’s verdict.^[207] He suggested to the jury that given the vast amount of the Colony’s population who were prisoners, they were ‘eager to change their condition’ and had nothing to lose.^[208] However despite such ominous predictions of anarchy, the prosecution’s strenuous efforts to secure a conviction proved fruitless despite the composition of the jury by military officers.^[209]

The prosecution persisted with its belligerence in R v Wardell (No 3).^[210] Wardell was charged over a letter appearing in The Australian signed ‘Vox Populi’ strongly attacking the Governor. The Attorney-General in his opening address resorted to similar rhetoric as before by saying that, ‘nothing could be more insolent and malicious, nor could anything bring the Governor and Government in greater hatred and contempt’^[211] than the article. Whether it was true or not was irrelevant. The Attorney declared:

It is a malicious and unauthorised attack on character, against which the law of a civilized country is to be armed... How insignificant the loss of property by the violence of the robber, to the moral assassination by a libeller!^[212]

This theme was continued by the Solicitor-General, who again insisted, regardless of the fact that the defence had called no witnesses, on exercising the right of addressing the jury.^[213] The Solicitor-General examined at great length each part of the alleged libel ‘showing its malignity and scurrility, and proving the great evils and disgrace of allowing such attacks on the head of the government to go unpunished.’^[214] However, the military jury despite (or perhaps because of) such efforts again refused to convict.^[215]

The conduct of William Stawell, the Attorney-General of Victoria, during the State Trials in Victoria of 1855 of the thirteen defendants charged with high treason arising from the Eureka Stockade, can also be seen in a similar light of confronting political offenders. Governor Hotham and the Victorian authorities saw the protests that culminated in the Eureka Stockade not, as is the general consensus amongst historians, as a localised grievance but as part of a wider plot by ‘a numerous band of foreign anarchists and armed ruffians’^[216] to incite revolt and revolution in order to overthrow the government.^[217] Stawell also seems to have adopted this view and was determined to make an example of the thirteen defendants. He declared that ‘so long as we are interested in the maintenance of law and order, so long must we feel the greatest and deepest importance in the result of a trial of this kind.’^[218] Stawell insisted, in the face of much criticism,^[219] on indicting all of the defendants on the capital count of high treason. Indeed, he attracted considerable criticism for his conduct throughout the prosecution of the Eureka Stockade trials and was denounced as ‘The Counsel of Ahitophel.’^[220] He was accused of being bent on securing a conviction at all costs and of acting in a zealous manner by resorting to overblown rhetoric that was reminiscent of the vindictive style of the prosecutors in the notorious State Trials of the seventeenth century.^[221] A scrutiny of the Eureka Stockade trials confirms that some of the criticisms levelled at Stawell are justified, even making allowance for the political motivation behind some of them.^[222]

After the juries in the first two trials^[223] had refused to convict, Stawell adjourned the proceedings to enable a fresh panel of potential jurors to be summoned and made clear his intention of persisting with the trial of the remaining defendants. Stawell explained that although it was not for him to question the verdicts in the first two trials, he possessed ‘very strong feelings on the subject himself’.^[224] He therefore ‘did not feel at liberty to submit them [the remaining defendants] to the same panel’ as had dealt with the first trials.^[225] He evidently hoped that a fresh jury panel might prove more sympathetic to the prosecution case. This appears to have been a blatant effort on Stawell’s part to secure a more ‘respectable’, if not ‘stacked’, pool of jurors for the remaining trials.^[226] Molony has described Stawell’s actions as a ‘gross perversion of justice’^[227] that indicates that the Colony’s chief law officer ‘was not above perverting justice to obtain his own ends.’^[228] It is unsurprising that this tactic was, as Molony notes, widely criticised at the time, not only by The Age,^[229] but even by the usually pro-government Argus.^[230]

Stawell’s efforts proved fruitless and all the defendants were ultimately acquitted.^[231] It appears that Stawell allowed his indignation at what he perceived to be the treasonable activities of the Eureka Stockade defendants to cloud his professional judgment. His determination to secure a conviction owed far more to a desire to make an example of the defendants in a high profile case than a desire to conform to the notion of the prosecutor as a restrained minister of justice.^[232] Stawell, as Phillips observed, ‘had allowed his emotions...to lead him into the decision to insist that charges be laid against all the prisoners for high treason, for which the penalty was death.’^[233] Phillips concludes, ‘[t]his was in my view, a sledgehammer to crack a walnut, and the Melbourne juries clearly saw he was doing just that.’^[234]

VIII ABORIGINES

The restraint with which prosecution counsel conducted cases involving white defendants where the victims were Aborigines,^[235] should be contrasted with the belligerent prosecution approach in a number of cases where the defendants were Aborigines. While it is inappropriate in light of cases such as Boatman and Billy to argue that local prosecutors were inevitably biased against Aborigines in the discharge of their professional duties, a clear theme does emerge of Aborigines being labelled by prosecutors as ‘savages’^[236] and ‘cannibals’^[237] and, as such, deserving of prosecutorial zeal.^[238]

The approach of the Advocate-General of Western Australia as prosecution counsel in 1842 in R v We-War^[239] is illustrative. The accused was charged with murder. The case had attracted local interest, as the accused was the first Indigenous Australian tried in Western Australia under British criminal law ‘for offences committed against one of his own people.’^[240] The Advocate-General resorted to an address that, even by the standards of the time,^[241] was explicitly racist. He categorised the accused as belonging to a ‘savage rabble of wandering families’ and implored the court not to be led astray by arguments of ‘cant’.^[242] The Advocate-General argued that it was ultimately the duty of the white man to ‘civilise the savage’ and ‘to proclaim to the savage that such deeds were alike criminal in the eyes of the almighty, and intolerable in those of civilised nations.’^[243] Defence counsel objected to this diatribe^[244] but the accused was, nevertheless, convicted.^[245]

Even an Attorney-General such as John Plunkett who was known for the empathy that he demonstrated towards Aborigines,^[246] was not immune from resorting to an approach at odds with any role as a minister of justice. In R v Sandy and Others^[247] in 1839 the Aboriginal defendants were charged with the robbery of a white man. The defendants’ meaningful participation in the proceedings was limited as some of them apparently had little understanding of English. In opening the Crown case, Plunkett declared that no observation calculated to prejudice the defendants would fall from him and he insisted that no distinction should be made between an Aboriginal defendant and a white defendant. However, as the issue at trial was that of identification, Plunket commented that an Aboriginal defendant, unlike a white defendant, was at a distinct advantage because of the ‘great similarity of their features.’^[248] Plunkett even opposed the efforts of both the trial judge and defence counsel to secure the translation of the proceedings for the defendants.^[249] He criticised these efforts as ‘spurious humanity’^[250] and contended that given the defendants were legally represented there was no need for the evidence to be translated for their benefit.^[251]

In some cases prosecutors went further and openly portrayed Aboriginal defendants as a threat to colonial society. In R v Tallboy^[252] in 1840 the defendant was charged with the murder of a white stockman who had been employed by the late Reverend Marsden, a prominent landowner. Prosecution counsel, Mr. Therry, urged the jury to view the defendant as an ‘enemy of white society’ and to consider the importance of making an example of the defendant by returning a guilty verdict.^[253] He also drew attention to the case of R v Kilmeister (No 2):

...It was only twelve months since, not less than seven white men had been tried for, convicted, and executed being concerned in an outrage on the blacks, and that too, in what in his opinion, was less direct evidence than that which he was about to offer^[254]... he reminded the jury of their duty to themselves, and their fellow colonists, as it was for the purpose of protecting their lives and property, that they were called on to give their time and talents to the consideration of cases such as this.^[255]

A similar theme was echoed in 1841 in the prosecution of two Aboriginal defendants in R v Merrido and Nengavil.^[256] The accused were charged with the murder of a white surveyor near Brisbane. The prosecutor argued that no matter how distressing it might be for the jury to see ‘persons so inferior to them in intelligence’ in court to answer for their crimes ‘it would be more distressing and more to be regretted, if they were not liable to the same punishment as the whites were.’^[257]

The need to deter such ‘acts of aggression’ by Aboriginal offenders upon white victims was also made clear in R v Yerricha and Others.^[258] In this case three Aborigines were charged with the murder of a white shepherd. The Advocate-General advanced the proposition that whatever disadvantages to South Australia’s Indigenous population may have resulted from British colonisation, it had, nevertheless, conferred on them ‘a recompense of far more importance, by giving them all the advantages of British subjects in this world, and of placing before them the way to, and the hope of, eternal happiness in the world to come.’^[259] He emphasised the need to make an ‘example’ of the accused:

[I] hope both for the good of the colonists of South Australia and for the good of the Aborigines, that the verdict of the jury would be such as in his opinion the evidence (which he had carefully examined) warranted,...because these men being made an example of will prevent further acts of aggression on the part of the natives – and will act for the good of the black population, by preventing their being shot or hunted down indiscriminately like wild beasts, as I feel certain will be the case if these men be acquitted.^[260]

The immoderation demonstrated by prosecution counsel in cases such as Tallboy, Merrido and Yerricha is unsurprising in the context of colonial society at the time as the threat from Aborigines was perceived by whites as very real. As Woods notes, ‘Aborigines did not merely melt away in the face of what the whites regarded as settlement, and what the blacks saw as invasion.’^[261] There was, on any view, significant violent Aboriginal resistance to white colonisation.^[262]

This background of violent resistance to colonisation explains why Aboriginal defendants were regarded as worthy of prosecutorial vigour. White settlers and their property were perceived as under real threat and there was an apparent need to impress upon the Aboriginal population that crimes committed upon white lives or property were unacceptable and must be deterred.

IX OTHER OFFENDERS ‘BEYOND THE PALE’

The passion with which counsel undertook the prosecution of defendants such as bushrangers, convicts, political offenders and Aborigines was not unusual in Australia. There were offenders who committed a range of other offences that were similarly regarded as being ‘beyond the pale’.^[263] Sheep or cattle thieves fell into this category.^[264] The Attorney-General in R v Butler and Others^[265] in 1824 urged the jury to make an example of several defendants accused of the theft of sheep, ‘for, if depredations of such an extent are not prevented, or if perpetrated, not visited with that punishment which the Law provides,^[266] serious and alarming must be the evils to which every settler must be exposed.’^[267] The crime of forgery, perhaps reflecting the widespread view of the period,^[268] was also pursued with great vigour by prosecution counsel.^[269]

Offenders accused of a range of sexual offences such as rape, unlawful carnal knowledge of a child and even sodomy and bestiality were also viewed in these terms.^[270] In R v Matthews and Others^[271] in 1824, being the same year that he had acted with such conspicuous restraint in Pearce, the Tasmanian Attorney-General adopted a belligerent approach at trial in the prosecution of three defendants charged with the rape of a ten-year-old girl. He brandished the crime as one of ‘peculiar barbarity’ and referred to the ‘defenceless form’ of the ‘infant’ who had been ‘defiled.’^[272] He lamented that a female defendant to whose care the child had been entrusted, ‘O! degradation to her sex, had not [only] deserted her trust, but had actually pandered to the ravisher.’^[273] The Attorney-General went on to address the jury as to the ‘heinous effects of such base crimes as imputed to the prisoners.’^[274]

Such prosecutorial outbursts, excessive as they may appear, are not entirely surprising. In the fray of an adversarial contest, combative instincts were likely to prove, on occasion at least, difficult to resist. However, it is significant that many of the cases of the period that demonstrate prosecutorial fervour incompatible with the minister of justice role, dealt with persons charged with offences that were seemingly regarded in colonial society as ‘beyond the pale.’ Such offenders not only challenged accepted notions of law and order but were also regarded as posing a threat to colonial society. In these situations prosecution counsel tended to ignore their role as the restrained minister of justice. Unlike the sympathy that was generally extended to ‘gentlemen,’ there was a tendency for the prosecutor to discard any convention of restraint against defendants who were perceived as ‘enemies of society,’ in their bid emphasise the deterrent effect of such a case. Further, prosecutors were selective in their determination of who constituted an ‘enemy of society.’ While a defendant such as Major Lord accused of plundering government stores, or the Magistrate in Bingle and Were accused of cattle stealing were treated with benevolence, in contrast convicts, bushrangers, political offenders, indigenous offenders or even sheep thieves might be denounced by prosecution counsel in the strongest terms and the jury urged to make an example of them.

A considerable degree of prejudice and class bias is manifest in the reasoning by which the prosecuting lawyers in Australia determined which defendants were to be deemed as ‘enemies of society’ and deserving of prosecutorial zeal. Australian prosecutors in the 19th century on occasion were both overly partisan and unduly influenced by subjective considerations such as class and race as well as the perceived need to make an ‘example’ of certain offenders.

X THE ULTIMATE TRIUMPH IN AUSTRALIA OF THE PROSECUTOR AS A MINISTER OF JUSTICE

It was not always the case that prosecution counsel acted in a partial and/or combative manner. The prosecutorial restraint and solicitude for the accused demonstrated in such cases as those discussed in Part 3, continued to be demonstrated, although unevenly, throughout the 19th century. As has been seen even in colonial cases that might attract strong opprobrium such as horrific murder and cannibalism by an escaped convict as in Pearce or the murder of a white man by an Aboriginal defendant as in Billy, prosecution counsel resisted adversarial temptation and conducted their cases with scrupulous restraint. Such defendants were manifestly not ‘gentlemen.’ Their crimes were likely to have been regarded in ‘respectable’ colonial society as posing a challenge to the accepted notions of law and order, but this did not prevent prosecution counsel from acting with fairness. As the 1800s progressed, prosecutorial practice in Australia came to accord with what was the practice in England, where from at least the 1790s one finds prosecution counsel, in confronting defendants whose crimes challenged the established social order or were otherwise ‘beyond the pale,’ acting with restraint.^[275]

Throughout the second half of the 1800s, there are increasing instances of prosecutors acting with moderation and fairness, even in prosecuting crimes likely to give rise to strong passions. The application of such moderation and fairness remained patchy, but, nevertheless, after an inconsistent development and application, the minister of justice role emerged in both reality and rhetoric. The comment in 1864 of the Attorney-General during the trial of the notorious bushranger Francis Gardiner, ‘No-one would be better pleased than myself if you acquit the prisoner,’^[276] illustrates the ultimate confirmation in Australia of the minister of justice concept. This coincided with the evolution of Australian society during the mid 1800s from a penal colony seemingly beset with threats to an increasingly secure and stable civil society.

A striking example of prosecutorial restraint was demonstrated in Tasmania in 1843 in R v Cash and Kavanagh^[277] during the trial of two ‘notorious bushrangers’^[278] who had escaped from Port Arthur. Cash was said to have murdered a special constable during his arrest. The Attorney-General, despite the nature of the case, acted with moderation. He urged the jury ‘for the sake of the prisoner at the bar, and on every principle of right and justice’ to listen only to the evidence and to divest their minds of any preconceived opinion or anything they may have read in the Colony’s newspapers or heard from any other medium.^[279] A similar concern for the defendant had been demonstrated by the same Attorney-General a year before in R v Belfield.^[280] In that case the legally unrepresented defendant was charged with the murder of a fellow convict at Port Arthur. In opening the case, the Attorney-General emphasised to the jury the importance of ignoring anything they might have heard or read about the case and to act only upon the evidence that was led at trial. The Attorney-General commented that he had seen a detailed report of the case in the local press and that he would be failing in his duty as a public prosecutor if he did not deplore such accounts as they undermined the ‘well known maxim in British jurisprudence that every man must be believed to be innocent till he was proved to be guilty.’^[281]

It appears that from about this period, namely the 1840s, such fairness and prosecutorial solicitude for the interests of the accused and the importance of securing a fair trial became a regular feature of legal practice in Australia.^[282] The trial in R v Knatchbull^[283] in 1844 illustrates this trend. Knatchbull was an unlikely defendant. He came from a ‘respectable’ background^[284] and his brother, Sir Edward Knatchbull, was a Minister at the time in the British Cabinet. However, Knatchbull had been a ‘notorious’ convict^[285] and ‘in the Colony his career was one of low vice and habitual crime.’^[286] He had been ‘one of the most daring and vindictive of the Norfolk Island mutineers, the “herd” of murderers and robbers of the most cowardly kind.’^[287] Nevertheless, Knatchbull seems to have enjoyed a ‘charmed life’ in the colonies after his transportation from England.^[288] He was finally charged in 1844 with the brutal murder of a woman in Sydney. There was a strong public reaction. As Woods notes:

The resentment felt by the mass of New South Welshmen against their lords and masters in the British caste system was usually stifled or diverted; however, in Knatchbull, the man in the street had a living symbol of the arrogance of the ruling classes. He was a ‘toff’ who had treated a working class woman with the ultimate contempt and disregard.^[289]

Notwithstanding this public passion it is instructive to note that at trial the Attorney-General acted with scrupulous restraint. He declared that the ‘notoriety’^[290] of the accused was irrelevant and urged the jury to dismiss from their minds anything they may have heard outside of court relating to either the case or the accused. He reminded them that they should act only on the evidence that they would hear as ‘by which evidence alone the case must stand or fall.’^[291] The Attorney-General noted that if he was unable to prove what he claimed was the prosecution case by the evidence of his witnesses then ‘he would beg of them to let all he had stated, and all they had heard, go for nothing.’^[292] It is unclear whether the Attorney’s fair treatment of Knatchbull was the product of bias in favour of an accused from a ‘respectable’ background, masquerading as prosecutorial restraint or rather was genuine adherence to the notion of the prosecutor as the restrained minister of justice.^[293]

However, the seminal case of R v Nixon^[294] in 1857 in Tasmania affords a powerful illustration of the prosecutor’s adherence to the minister of justice role regardless of the status of the defendant or victim. In Nixon the accused was a former convict^[295] who was charged with the brutal murder of the 14-year-old son of a Captain Chamberlayne. The boy had also been sexually assaulted. The case had attracted strong public passion and calls in the press for summary justice.^[296] The Attorney-General’s restrained conduct of the trial attracted the praise of both defence counsel and the trial judge.^[297] Notwithstanding the nature of the crime, the Attorney emphasised in his opening address that the administration of justice should be ‘mild and passionless.’^[298] He reminded the jury of their roles as the ‘sacred judges of the prisoner at the bar’^[299] and the importance of keeping their minds free of any prejudice. He further lamented some of the stronger press coverage as being ‘so subversive of every principle of justice’ and warned that if such views became prevalent, things would be worse than had existed in California under the Vigilance Committee.^[300] The Attorney’s scrupulously fair conduct of such a highly charged trial of an accused who, on any view, conformed to the definition of the worst type of offender in colonial society, highlights the application in Australia of the minister of justice role in reality and not just rhetoric.^[301]

Another telling illustration can be found in the trial of R v O’Farrell^[302] in 1868. O’Farrell had shot and wounded Prince Alfred, a son of Queen Victoria, during an apparent assassination attempt. The case prompted outpourings of outrage and patriotism throughout Australia. There were ominous suggestions that O’Farrell was part of a plot by Irish Fenian terrorists resident in Australia.^[303] Despite this emotive background, James Martin, the Attorney General, declared prior to trial that it was important that justice was accorded to the accused.^[304] This sentiment was repeated at trial. Martin reminded the jury not approach the case in a ‘spirit of vengeance and partiality’ but in a spirit of ‘calm, cool and dispassionate inquiry’ so that ‘the British Empire and the world might have an example not of our vengeance but of our justice.’^[305] Martin also ‘carefully abstained from bringing before the jury any consideration with connection with a secret or Fenian organisation’^[306] and confined the prosecution case to the issue of insanity.^[307] The prosecutor was, outwardly at least, the model of detached restraint in his conduct of the case.^[308]

A similar moderation was manifest in 1869 in R v Randall^[309] during the trial of a man for the alleged murder of his illegitimate infant child. The Attorney-General, in reluctantly exercising his right to make a closing address, declared his support for the minister of justice concept:

He [the Attorney] hoped he would not exceed such liberty as was necessary to attain the fair ends of justice and lead to the knowledge of the truth in the case. He felt solemnly that if he used any unfair argument to secure the conviction of the prisoner he would be a participant in a murder, and therefore he hoped to display no leaning to one side. The Crown had no such leaning; it was impartial, and to both prosecutor and prisoner were alike impartial; it was the duty of a public prosecutor to assist the jury to arrive at the truth and nothing but the truth, but the Crown didn’t act now, as in former days,^[310] endeavour to press a charge against a prisoner unfairly.^[311]

The minister of justice role, such as that demonstrated in Nixon and Randall, was increasingly demonstrated in other cases of the period^[312] and continued to be displayed by prosecution counsel into the 20th century in similarly highly-charged cases. The case of R v Governor^[313] in 1900 is a notable example. The accused was both a ‘notorious outlaw’ and Aboriginal.^[314] He had killed a white woman after an apparent racial slight.^[315] Governor and his brother had then embarked upon a 14 week rampage as bushrangers that left a further eight white people dead and much of New South Wales ‘in a state of terror.’^[316] The two were branded as ‘human tigers’^[317] and ‘the brace of dusky monsters known as the Breelong murderers’^[318]. Governor was eventually arrested^[319] and fully admitted his responsibility.^[320] He was charged with the murder of the first victim.^[321] The case aroused strong public passion and intense press coverage.^[322]

Despite this background, prosecution counsel at trial proved the model of restraint. He confined his opening address to a brief and objective narration of the circumstances of the case^[323] and warned the jury that they should come to the case with a ‘clean slate’ and not give a verdict against the weight of the evidence.^[324] The jury should not be distracted by either the ‘shocking and horrible’ nature of the crimes apparently attributable to Governor nor the intensive publicity that had already pronounced the accused guilty.^[325]

Governor confirms the now-established practice in Australia of the prosecutor as the disinterested figure only concerned with seeking of the truth, a minister of justice. The role of the partisan or zealous advocate evident during the trials discussed in Parts 5-8 above was plainly no longer viewed as the appropriate representation of the role of the Australian prosecutor.

XI WHY THE MINISTER OF JUSTICE ROLE EMERGED IN PRACTICE IN AUSTRALIA AND ITS IMPLICATIONS

The change in the practical nature of the prosecutorial role in Australia, as in England, did not occur in a social vacuum.^[326] Australia underwent a fundamental transformation during the course of the middle part of the 19th century and evolved far beyond its origins as a simple penal colony. Though a detailed consideration of these changes and the reasons for them is beyond the scope of this article, it is notable that transportation to New South Wales ended in 1840 and to Tasmania in 1853. The colonies were granted first representative and then responsible government by 1856. There was increasing ‘free’ migration to Australia in the 1830s and 1840s and a vast influx during the Gold Rushes of the 1850s. The number of crimes attracting the death penalty was drastically reduced.

Tasmania and New South Wales were no longer isolated penal outposts in which the non-convict white population felt themselves under constant threat, whether from bushrangers, convicts or Aborigines. The ‘fear’ factor in colonial society subsided. There was an emergence and establishment of democratic political institutions^[327] and the development of a civil society such as might accord with that of any of the principal towns of England outside of London.^[328] By 1850, as Shaw has noted, ‘convictism was virtually at an end, prosperous communities, largely self-governing, were winning wealth from the former wilderness, and the cultural and social foundations of a nation had been laid.’^[329] Neal describes how with the granting of responsible government in New South Wales in 1856, the transition from penal colony to free society was complete.^[330] Serle describes how the Gold Rushes of the 1850s had a further major effect on Australian society that was not confined to Victoria.^[331] He concludes, quoting a contemporary observer, that by 1860 a ‘vast continent, long regarded only as a convict prison and an abode of one of the lowest forms of savage life’ had been elevated to ‘become a seat of industry, progressive refinement, freedom and Christianity.’^[332]

Even in Tasmania where the legacy of transportation proved more lasting than that experienced on the mainland^[333] and the ‘fear’ factor survived beyond the 1850s,^[334] a ‘clean break with the past’^[335] was achieved with the end of transportation in 1853, the granting of responsible government in 1856 and even the formal renaming of the colony in 1855 to ‘Tasmania.’^[336] After 1865 the ‘fear’ factor, even in Tasmania, dissipated.^[337] In contrast to the threatening image of Tasmania described by Montagu J half a century earlier, ‘Historians are agreed that by the end of the 19^th century Tasmania had become most law abiding.’^[338] As the rule of law took hold in Australia in the context of an increasingly developed and stable society,^[339] the English concept of the appropriate prosecutorial role in a fair criminal process also gained widespread acceptance.

Criminal practice and procedure in the 19th century in the Australian colonies did not always accord with that of England. Indeed, there were major disparities in certain areas. The comments of Dowling J in Farrell suggest that it was possible that, notwithstanding the adoption of the law of England in Australia, a different approach to the prosecutorial role might have evolved given the peculiar local conditions. However any such divergence in criminal practice between England and Australia did not extend to an issue as fundamental in the criminal process as the proper role of the prosecution lawyer. The proposition that the prosecutor should act as a minister of justice and not as a partisan advocate became a central pillar of English criminal procedure in the 1800s.^[340] Though on rare occasions in practice, even in England, an unusually partisan prosecutor might depart from this role,^[341] such cases were very much an aberration. Various English cases in the 1800s and beyond confirmed that the prosecutorial role remained that of a minister of justice.^[342]

In dealing with such a crucial issue to the administration of criminal justice as the prosecutorial role, and given the clear and authoritative judicial pronouncements in England declaring that role was as a minister of justice (and the sound reasons for the adoption of such a role given the unequal position of the defendant within the English criminal process of the 19th century),^[343] it was highly unlikely that a different position would ultimately be taken in Australia. The judicial and legal culture of Australia in the 19th century and well into the second half of the 20^th century was so deferential, if not subordinate, to the law of England^[344] that it was to be expected that despite local conditions and the adversarial nature of 19th century Australian criminal process, the same prosecutorial path as in England would ultimately also be taken in Australia. As Kercher notes, ‘The dominant belief by the second half of the 19th century was that there was one, universal timeless common law and that colonial conditions would rarely justify its non-acceptance.’^[345]

It is clear that, despite the absence of an authoritative judicial pronouncement in Australia in the 1800s, the eventual practice and understanding as to the proper role of the prosecuting lawyer in Australia was eventually to become that expressed in the English cases and as that had been foreshadowed by colonial prosecutors themselves in Australian cases such as Davidson and Anderson. Clearly, on occasion, prosecutors in Australia did depart from the role of the impartial minister of justice. In cases such as Lord and Bingle and Were prosecution counsel showed apparent class bias in favour of ‘respectable’ defendants who were ‘gentlemen’ under the guise of prosecutorial restraint. In the trials described above in Parts 5-8, prosecutors exhibited bias against defendants and assumed the mantle of the zealous advocate who discarded the minister of justice role and succumbed to adversarial temptation. This seems to have been especially apparent in the context of colonial society in the first half of the 1800s when local prosecutors confronted defendants who were viewed as ‘criminals of the deepest dye’^[346] and whose crimes were regarded as posing a challenge to accepted notions of law and order in a society that saw itself as under real threat. However, it is important not to overstate the influence of these cases in the ultimate development of the prosecutorial role. As a matter of reality in Australia, the prosecutor was required to function as a minister of justice and not as a partisan advocate or persecutor and this formulation cannot be dismissed as mere rhetoric. Neither the development of an adversarial system of criminal justice, nor major reforms to the criminal justice system at the end of the 1800s that alleviated the hitherto unequal position of the accused, were to alter the minister of justice role.^[347] Ultimately the minister of justice role was to emerge in Australia as a matter of reality and not just of rhetoric.

In 1946 in R v Bathgate^[348], the Australian courts finally confirmed what seems to have been applied or assumed, in any event, for decades, that the prosecutorial role was indeed that of a minister of justice. In Bathgate the accused had been convicted of murder. Prosecution counsel at the trial had introduced objectionable and inadmissible material.^[349] The defence had failed to object to this. The Crown, on appeal, sought to justify the conduct of prosecution counsel at the trial by reference to the part played by defence counsel. The New South Wales Court of Appeal disagreed. Maxwell J approved the classic formulation of the prosecutor’s role stated in England^[350] and emphasised ‘that it cannot be too strongly impressed that the obligations of a Crown Prosecutor arose not merely by reference to the attitude adopted by the defence.’^[351] The notion of the prosecutor as a minister of justice in Australia had finally received the judicial imprimatur. This role has been repeatedly reaffirmed and applied in modern times in both England^[352] and Australia.^[353]

Recent modern Australian cases,^[354] however, have not only confirmed this role but have arguably applied it to situations that are far removed from the stark situations contemplated in the criminal process of 19th century England and Australia that prompted its development. It can even be suggested that some modern cases have extended the concept of the minister of justice too far.^[355] Such cases might serve to raise questions as to whether a prosecutorial role that emerged in the particular climate of early 19th century England and was ultimately applied in Australia should remain unaltered given the vastly changed practices of the adversarial system of criminal justice in contemporary Australia and England. However, instances of dissent in respect to the notion of the modern prosecutor as a minister of justice have proved rare.^[356] As was made clear by the Farquharson Committee in England in 1986, in comments which are equally pertinent to Australia, although the description of the role of prosecution counsel ‘as a minister of justice may sound pompous to modern ears’ it still accurately describes the way in which a prosecutor should discharge his or her functions.^[357]

[∗] David Plater: BA, LLB, LLM and PhD; Lecturer, School of Law, University of South Australia; Honourary Research Fellow, Faculty of Law, University of Tasmania; Senior Legal Officer, South Australian Attorney-General’s Department, Adelaide. This article is partly derived from his thesis, The Changing Role of the Modern Prosecutor: Has the Notion of the ‘Minister of Justice’ Outlived its Usefulness? (PhD, University of Tasmania, 2011) <http://eprints.utas.edu.au/10743/2/David_Plater_wholepdf> . Sangeetha Royan: BA, LLB; Legal Practitioner of the Supreme Courts of Tasmania and Victoria. Any views expressed in this article are expressed in a purely personal capacity. The authors are grateful for the ever-helpful comments of Kate Warner and Terese Henning at the University of Tasmania and Sue Milne at the University of South Australia towards this article.

^[1] Sydney Gazette (Sydney), 17 April 1832, 2.

^[2] [1832] NSWSupC 8 (Sydney Gazette (Sydney), 17 April 1832, 2). See also ‘Revolt on board the Isabella Prison Ship’, The Australian (Sydney), 20 April 1832, 3.

^[3] See R v Berens [1865] EngR 42; (1865) 4 F & F 842; R v Puddick (1865) 4 F & F 482, 497 and 499. See also the commentary offered by the author of the report of Berens at (1865) 4 F & F 482, 483, n (b).

^[4] Therry’s enthusiasm for prosecutorial moderation in this case should be contrasted with the approach he later demonstrated in R v Tallboy [1840] NSWSupC 44 (Sydney Herald (Sydney), 12 August 1840, 1S; Australian Chronicle, 13 August 1840, 2). See further below n 255.

^[5] Sydney Gazette (Sydney), 17 April 1832, 2. Or to bring before the jury the enormity of the crime and paint it in ‘its most debasing colours’ as was suggested by the Attorney-General in R v Kilmeister & Others (No 2) [1838] NSWSupC 110 (The Australian (Sydney), 1 December 1838, 2; see also Sydney Gazette (Sydney), 1 December 1838, 2; Sydney Monitor (Sydney), 19 November 1838, 1S).

^[6] See, eg, M Cottu, On the Administration of Criminal Justice in England; and the Spirit of the English Government (Richards Stevens, 1822) 87-89; William Dickenson and Thomas Talfourd, A Practical Guide to Quarter Sessions and other Sessions of the Peace (3^rd ed) (Baldwin and Craddock, 1829) 350; John Beattie, ‘Scales of Justice: Defence Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries’ (1991) 9 Law and History Review 221, 253. There exists a great deal of material to study the historical development of the prosecutorial role in England. There are many sources of primary material such as formally reported cases, contemporary legal textbooks, journal articles and newspaper and other accounts (available in both electronic and paper format) of the criminal trials of the period which were typically reported at some length (ranging from the most sensational to even the routine). There has also been considerable study of the English criminal process of the 1700s and 1800s, notably of the development of the adversarial system of justice. The research undertaken for the historical development of the English prosecutorial role employed all these resources.

^[7] David Mallett, The Life of Francis Bacon (A Millar, 1760), xix; John Edwards, The Law Officers of the Crown (Sweet and Maxwell, 1964) 54-56 for a discussion of the negative historical perception of the prosecutorial role shown in such cases as R v Raleigh (1603) 5 St Tr 1 and R v College (1681) 5 St 549.

^[8] There was a fundamental transformation in the nature of the typical English criminal trial in the late 1700s and early 1800s from an inquisitorial ‘accused speaks’ hearing dominated by the trial judge at which lawyers were largely absent to a lawyer driven adversarial contest at which the judge adopted a more detached role. See further Beattie, above n 6, 251; David Cairns, Advocacy and the Making of the Adversarial Criminal Trial: 1800-1865 (Clarendon Press, 1998); John Hostettler, Fighting for Justice: The History and Origin of Adversary Trial (Waterside Press, 2006); Stephan Landsman, ‘The Rise of the Contentious Spirit: Adversary Procedure in Eighteenth Century England’ (1990) 75 Cornell Law Review 497; John Langbein, ‘The Criminal Trial before the Lawyers’ (1978) 45 University of Chicago Law Review 263; John Langbein, ‘Shaping the Eighteenth Century Criminal Trial: A View from the Ryder Sources’ (1983) 50 University of Chicago Law Review 1; John Langbein, ‘The Prosecutorial Origins of Defence Counsel in the Eighteenth Century: The Appearance of Solicitors’ (1999) 58 Cambridge Law Journal 314; John Langbein, The Origins of Adversarial Criminal Trial (Oxford University Press, 2003); Allyson May, The Bar and the Old Bailey, 1750-1850 (University of North Carolina Press, 2003).

^[9] James Stephen, A History of the Criminal Law of England (Vol 1) (Macmillan and Co, 1883) 397. Though this analogy was offered by Stephen to describe the typical criminal trial of the late 1600s, his assessment remains equally apposite to describe the criminal process through until, at least, the various major reforms at the end of the 19th century. See further David Bentley, English Criminal Justice in the Nineteenth Century (Hambledon Press, 1998) 297-301; May, above n 8, 200.

^[10] See Landsman, above n 8, 603-604. Though Landsman does not refer to the prosecutorial role as a minister of justice he does include such developments to assist the accused as the curbs on the use of out of court confessions, the introduction and use of defence counsel and the rigour with which the evidence of accomplices and so-called ‘thief catchers’ (private prosecutors motivated by the generous rewards that were offered for the successful prosecution of certain offences) was viewed at trial. ‘All these developments suggest that the legal community of the day saw its task not simply as convicting the guilty, but as satisfying a profound social desire for fair play’ (Ibid, 604).

^[11] See the comments in 1824 of the Attorney-General in R v Flauntleroy (see a transcript of the trial in Horace Bleackley (ed), The Trial of Henry Flauntleroy and Other Famous Trials for Forgery (William Hodge and Co, 1924) 74-75; Langbein (2003), above n 8, 287-288; Cairns (1998), above n 8, 4 and 54; the view expressed by a British MP at 136 UK Parl Deb (3^rd ser), col 1651 (1855), quoted by Douglas Hay, ‘Controlling the English Prosecutor’ (1983) 21 Osgoode Hall Law Journal 165, 175. It was not until the Prisoners Counsel Act 1836 that the accused gained the right to be fully represented by counsel at both the committal proceedings and at trial and to sight pre-trial of the depositions of the prosecution witnesses.

^[12] See R v Brice (1819) 2 B & Ald 606; R v George Maxwell Ltd [1980] 2 All ER 99; John Spencer, ‘Response to Consultation’ quoted by Lord Peter Goldsmith, Pre-Trial Witness Interviews by Prosecutors Report (Office of the Attorney-General, 2004) 6. The overly zealous, vindictive and corrupt nature of many private prosecutions was a regular complaint in the first half of the 1800s. See, for example, the views of John Phillimore QC quoted by John Hosteller, The Politics of Criminal Law Reform in the 19^th Century (Barry Rose Law Publishing, 1992) 166; Sir Robert Peel quoted by Sir Leon Radzinowicz, A History of English Criminal Law and its Administration from 1750 (Vol 3): Cross-Currents in the Movement for Reform of the Police (MacMillan, 1957) 259, n 2. See further Edwards, above n 7, 340-343.

^[13] See John Beattie, Crime and the Courts in England: 1660-1800 (Clarendon Press, 1986) 35-36; Edwards, above n 7, 339; Stephen, above n 9, 419.

^[14] Ibid.

^[15] Parliamentary Debates 11 (1824): 190, quoted by Beattie (1991), above n 6, 253. This remark was, ironically, made in the context of a parliamentary debate opposing the right of defence counsel to appear in criminal trials.

^[16] Douglas Hay, ‘Property, Authority and the Criminal Law’ in Douglas Hay et al (eds), Albion’s Fatal Tree: Crime and Society in Eighteenth-Century England (Pantheon Books, 1977) 17, 39.

^[17] See, for example, R v Fonton, Central Criminal Court, 15 July 1790, No T 17900915-37 (emphasis on the accused’s respectable position at the Bank of England which he had allegedly defrauded); R v Shore, Central Criminal Court, 14 January 1801, No T18010114-25 (emphasis on the accused as a ‘man of repute and character’ and ‘opulence’ charged with the murder of his wife); R v Macnamara, Central Criminal Court, 20 April 1803, No T180304020-2 (great emphasis by prosecution counsel during a manslaughter trial arising from a fatal duel on the high standing as ‘gentlemen’ of both the accused (a naval Captain) and the deceased (an army Colonel)); R v Lambrecht & Others, Kingston Assizes, 2 April 1830 (The Times (London), 3 April 1830) (prosecution arising from a death in a duel).

^[18] See, for example, R v Curtis, 15 September 1784, Central Criminal Court, No 1784040601-1 (infanticide); R v Thursfield (1838) 8 Car & P 269 (infanticide).

^[19] See, for example, R v Patmore, 25 February 1789, Central Criminal Court, No T 17890225-1 (the accused was alleged to have callously murdered his estranged wife by starvation and ‘hard usage’); R v Corder in 1826 (see the transcript of the trial in James Curtis, The Mysterious Murder of Maria Marten at Polstead in Suffolk (reprint) (Geoffrey Bless, 1928) 93-103 but especially 93) (the sensational ‘Red Barn’ murder); R v Thurtell & Hunt, Hertford Assizes, 6 January 1824 (The Times (London), 7 January 1824) (a gambling related murder that attracted intense press coverage); R v Gorring, Horsham Assizes, 24 March 1824 (The Times (London), 25 March 1824) (the prosecution of a 15 year old servant girl accused of the murder of her employer’s young daughter which was undertaken in the ‘most dispassionate way’); R v Jones, Central Criminal Court, 22 February 1828 (The Times (London), 23 February 1828) (the highly publicised trial for the brutal murder of a widow).

^[20] See, for example, the zealous prosecutors in R v Raleigh (1603) 5 St Tr 1; R v College (1681) 5 St 549. See also Sollom Emelyn, Preface to State Trials (2^nd ed), 3, quoted by Edwards, above n 7, 54.

^[21] Offenders in Australia who were regarded as ‘enemies of society’ during this period were often prosecuted with considerable zeal. See further the discussion in Parts 5-8 of this article.

^[22] See, for example, R v Thistlewood & Others in 1820 (see the transcript of the trial in George Wilkinson, An Authentic History of the Cato-Street Conspiracy – with the trials at large (Thomas Kelly, 1820) 112-116) (at the trial for treason of several individuals who had plotted to murder the entire British Cabinet and overthrow the Government, the Attorney-General stressed his role to state to the jury ‘calmly and fairly the facts... without any attempt at exaggeration on the one hand, or anything but a fair and candid narrative on the other, without any colouring whatsoever’ (Ibid, 113)); R v Riding, Lancaster Assizes, 18 August 1823 (The Times (London), 23 August 1823) (the attempted murder of a Member of Parliament with a meat cleaver); R v James & Pittaway, Oxford Assizes (The Times (London), 8 August 1824) (the murder by two poachers of a gamekeeper); R v Martin, York Crown Court, 31 March 1829 (The Times (London), 2 April 1829) (burning down York Cathedral); R v McNaughton (see the transcript of the trial in RM Bousfield, Report of the Trial of Daniel McNaughton at the Central Criminal Court, Old Bailey, (on Friday 3 and Saturday 4 March 1843) for the wilful murder of Edward Drummond Esq. (Henry Renshaw, 1843) (the Solicitor-General recited ‘calmly and dispassionately’ (Ibid, 1) the Crown case at the famous murder trial arising from the attempted assassination of the British Prime Minister).

^[23] See for other similar examples of prosecutorial zeal, R v Radbourne, Central Criminal Court, 11 July 1787, No T17870711-1 (murder and ‘petit treason’ of the violent death of an employer by his servant); R v Patch (see the record of the trial in Joseph Gurney and William Gurney, The Trial of Richard Patch for the Wilful Murder of Issac Blight (M Gurney, 1806) (murder of the accused’s social ‘superior’)); R v Edmonds & Others, Warwick Assizes (The Times (London), 5 August 1820) (a sedition trial arising from a political protest); R v Courvoisier, Central Criminal Court, 18, 19 and 20 June 1840, No T18400615-1629 (the opening address of prosecution counsel is reported in full in The Times (London), 19 June 1840; Sydney Gazette (Sydney), 24 October 1840, 4). Courvoisier is a notable example of prosecutorial zeal at the famous trial of a Swiss servant for the murder of Lord Russell, his eminent aristocratic employer. See Cairns (1998) above n 8, 129, n 4; James Atlay, Famous Trials of the Century (Grant Richards, 1899) 44-63; William Townsend, ‘The Trial of Francois Benjamin Courvoisier for the Murder of Lord William Russell’ in Modern State Trials (Brown, Green and Longman, 1850) 244-312.

^[24] R v Connolly and Moran, Hertford Assizes, 5 March 1824 (The Times (London), 6 March 1824).

^[25] Ibid. Despite the Sergeant’s restraint both accused were convicted and one was sentenced to be hanged.

^[26] See, for example, R v Burrows, York Summer Assizes, 17 July 1823 (The Times (London), 21 July 1823) (attack and rape of the daughter of a respectable ‘gentleman’); R v Wakefield & Wakefield (The Times (London), 26 March 1827, 2-4) (the abduction and coerced marriage of an underage heiress); R v Vaughan (The Times (London), 14 August 1828) (graverobbing) (see also Cairns (1998), above n 8, 39-40); R v Hollinghead, Huntingdon Assizes, 13 March 1830 (The Times (London), 8 March 1830) (bank robbery); R v Wallace in 1841(see the transcript of the trial in Central Criminal Court, The Trials of Patrick Maxwell Stewart Wallace and Michael Shaw Stewart Wallace (Williams & Son, 1841) 11-12 (sinking a ship to defraud the insurer).

^[27] See also the prosecutorial fairness shown in R v Mead & Belt, York Assizes, 21 July 1823 (The Times (London), 24 July 1823); R v Overfield, Shrewsbury Assizes, 19 March 1824 (The Times (London), 22 March 1824) (the murder by a father of his three month old son); R v Flauntleroy (Bleackley, above n 11, 74-75) (forgery); R v Garlick, Central Criminal Court, 30 October 1826 (The Times (London), 31 October 1826) (theft of money by a postal worker); R v Franklin, Hertford Assizes, 5 March 1830 (The Times (London), 6 March 1830) (murder of wife); R v McGowan, Lancaster Assizes, 13 August 1831 (The Times (London), 16 August 1831) (a shooting during an industrial dispute by a watchman who was a former soldier).

^[28] Though firmly established by the 1820s, it is unclear when the minister of justice role first appeared and its origin is the subject of some academic debate. See the terse exchange between May (Allyson May, ‘Book Review’ (2001) 19 Law and History Review 676; ‘Reply’ (2002) 20 Law and History Review 448) and Cairns (David Cairns, ‘Correspondence’ (2002) 20 Law and History Review 445).

^[29] See, for example, Howard Shapray, ‘The Prosecutor as a Minister of Justice: a Critical Appraisal’ (1969) 15 McGill Law Journal 124, 125-128; Barry Grossman, ‘Disclosure by the Prosecution: Reconciling Duty and Discretion’ (1988) 40 Criminal Law Quarterly 346, 348-349.

^[30] See Central Criminal Court, Illustrated and Unabridged Edition of the Times Report of the Trial of William Palmer for poisoning John Parsons Cook at Rugeley: from the shorthand notes taken in the Central Criminal Court from day to day (Ward & Lock, 1856) 142. See also the similar tension manifest in R v Jephson, Cambridge Assizes, 23 July 1823 (The Times (London), 25 July 1823) and Australian cases such as R v Kilmeister & Others (No 2) [1838] NSWSupC 110.

^[31] See, eg, John Sutherland, ‘Role of the Prosecutor: A Brief History’ Criminal Lawyers Association Newsletter (June 1998) <http://www.criminallawyers.ca.newslett/19-2/sutherland.htm> .

^[32] Robert Hughes, The Fatal Shore: A History of the Transportation of Convicts to Australia, 1787-1868 (Collins Harvill, 1987) 323. See also Louisa Meredith, Notes and Sketches of New South Wales during a Residence in that Colony from 1839 to 1844 (John Murray, 1844) 52-53.

^[33] See, for example, the apparently well known ‘respectable’ defendants in R v Lord [1834] TASSupC 8 (Colonial Times (Hobart), 10 June 1834, 7-8; The Colonist, 10 June 1834); R v Lewis [1834] TASSupC 14 (Colonial Times (Hobart), 13 May 1834, 6; Hobart Town Courier (Hobart), 16 May 1834, 2); R v Bolden (Port Philip Patriot (Melbourne), 6 December 1841); R v Ross [1842] TASSupC 7 (Colonial Times (Hobart), 15 March 1842, 2); R v Valentine [1842] TASSupC 4 (Launceston Examiner (Launceston), 11 January 1843, 3; Cornwall Chronicle (Launceston), 14 January 1843, 4).

^[34] See, for example, Alan Atkinson, The Europeans in Australia: A History Volume 1: The Beginnings (OUP, 1997); John Hirst, Convict Society and its Enemies (Allen & Unwin), 1987); Grace Karskens, The Colony: a Early History of Sydney (Allen & Unwin, 2009); David Neal, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales (Cambridge University Press, 1991).

^[35] It is noteworthy that the minister of justice role developed in England at a time of virtual continuous civil war in Ireland (Hughes, above n 32, 194; see further Tony Moore, Death or Liberty: Rebels and Radicals Transported to Australia 1788-1868 (Murdoch Books Australia, 2010) 68-133, 300 and 308-313), deep social and industrial unrest in England (Hughes, above n 32, 196; Moore, above n 35, 135-209, especially 136-137) and, in particular, fears of an increasing ‘crime wave’ in England in the turbulent aftermath explosion of the Napoleonic Wars (see Hughes, above n 32, 163-173; JL Lyman, ‘The Metropolitan Police Act of 1829: An Analysis of Certain Events influencing the passage and character of the Metropolitan Police Act’ (1964) 55 Journal of Criminal Law 141).

^[36] See the cases cited above at n 23 and n 26.

^[37] Cairns (1998), above n 8, 44.

^[38] See, for example, R v Thursfield (1838) 8 Car & P 269; R v Berens [1865] EngR 42; (1865) 4 F & F 842; R v Puddick (1865) 4 F & F 482, 499; R v Holchester (1865) 10 Cox CC 227, 227-228.

^[39] Unlike England there are no reported cases that provided judicial definition of the prosecutorial role in Australia.

^[40] It was routine until well into the 20^th century for journals and the daily newspapers in both England and Australia to report criminal cases, especially the leading or sensational trials of the period, at considerable, and sometimes almost verbatim, length. Even routine cases might be reported in significant detail.

^[41] This covers not only a vital period in the evolution of the role of the prosecuting lawyer but also other important legal developments in Australia. These cases are largely, though not totally, available online at: <http://www.austlii.edu.au> . Though these records and commentaries are a valuable source of historical and legal research they are necessarily incomplete. They cover only a proportion of the criminal trials of the period and do not include all the press reports of any trial included. The records largely stop in 1843. The National Library of Australia in 2008 has now placed online the entire archives of many of the newspapers of the 1800s available at <http://newspapers.nla.gov.au/ndp/del/home> .

^[42] The time and labour involved in manually trawling through the archives precluded this. However, with ongoing additions to the Austlii records and with the new comprehensive National Library of Australia database, there is clearly scope for future fertile legal and social historical research in this area.

^[43] These mostly refer to the capital punishment cases of the period.

^[44] The routine criminal cases were selected at random. Apart from scrutinising all the cases online at Austlii, the newspaper archives from 1843-1849 were looked at as well as for several months of two years for each decade from 1850 to 1880 and the reports of every criminal trial for those periods were scrutinised to see if any themes emerged as to the discharge of the prosecutorial role. However, the majority of the press reports shed little light on this issue. The sensational or leading criminal cases tend to be reported at greater length and afford more opportunity for shedding light on the prosecutorial role.

^[45] Most of these trials are now available at the online newspaper archives of the National Library of Australia.

^[46] This contrasts with England where the role of a minister of justice seems to have originally emerged from a combination of professional practice and etiquette with judicial confirmation a few years later.

^[47] Alex Castles, An Australian Legal History (Law Book Co Ltd, 1982) 39.

^[48] It is beyond the scope of this article to discuss in any detail the development of legal institutions in Australia. However, prior to the establishment of the Supreme Courts in 1824, the criminal law was administered in an arbitrary manner more akin to an inquisitorial system through the efforts of the Judge-Advocate who acted as the prosecutor, framed the indictment and presided over the court and had a vote in its judgment, see WJV Windeyer, Lectures on Legal History (2^nd ed (revised)) (The Law Book of Australasia, 1957), 302. It was only with the establishment of the Supreme Courts that a broadly adversarial system of criminal justice, similar to that which had recently evolved in England, was transplanted in Australia. See further Castles, above n 47, 32-66.

^[49] See above n 6.

^[50] This includes both the English and Irish backgrounds of Australian prosecutors.

^[51] It is beyond the scope of this article to embark upon any constitutional discussion of the reception into the Australian colonies of the law of England (both case law and statutory); whether by application of s 24 of the Australian Courts Act 1828 (Imp) and/or the proposition of Blackstone that any applicable English law automatically applied at the time of the British ‘settlement,’ as opposed to ‘conquest’, of an ‘unoccupied’ colony. See Windeyer, above n 48, 303-313.

^[52] See Roger Therry, Reminiscences of Thirty Years Residence in New South Wales and Victoria (Sydney University Press, 1974) 317. See further Bruce Kercher, ‘Why the History of Australian Law is not English’ (2004) 7 Flinders Journal of Law 177-204; Bruce Kercher, An Unruly Child: A History of Law in Australia (Allen & Unwin, 1995) for a discussion of how, even as early as 1788, a distinctive quality to the law emerged in Australia in many areas and it was not simply a pale imitation of English law. See Ibid, 194.

^[53] Sydney Gazette (Sydney), 26, 28 and 30 July 1831; NSW Select Cases (Dowling 1828-1844) 136. This case arose from the famous burglary of the Bank of Australia and raised the admissibility of the testimony of a convict.

^[54] NSW Select Cases (Dowling 1828-1844) 136, 148.

^[55] Ibid.

^[56] P Kidston, ‘The Office of Crown Prosecutor (More Particularly in New South Wales)’ (1958) 32 Australian Law Journal 148, 149.

^[57] See Ibid, 148. The private prosecutor, so pivotal to the English criminal system of the 1800s, never acquired the same prominence in the Australian colonies where from the outset of British colonisation, prosecutions were largely brought on a public basis.

^[58] The grand jury, a major feature of 19th century English criminal procedure, never acquired the same prominence in Australia. See the discussion of Dawson J in R v Grassby [1989] HCA 45; (1989) 168 CLR 1 at 10-14; John Bennett, ‘The Establishment of Juries in New South Wales’ (1961) 3 Sydney Law Review 462, 482-485.

^[59] It was not until 1946 with R v Bathgate [1946] NSWStRp 21; (1946) 46 SR (NSW) 281 at 284-5 that one can find in Australia a formal reported judicial expression of the prosecutor’s duty.

^[60] Editorial, ‘The Solicitor-General’, Sydney Gazette (Sydney), 21 February 1832, 2.

^[61] Ibid.

^[62] It was not unusual for ‘public’ prosecutors in the Australian colonies such as the Attorney-General and the Solicitor-General to retain a private legal practice.

^[63] [1828] NSWSupC 62 (The Australian (Sydney), 22 August 1828, 3).

^[64] The Australian (Sydney), 22 August 1828, 3.

^[65] [1827] NSWSupC 55 (Sydney Gazette (Sydney), 26 December 1827, 2; 28 December 1827, 2; Sydney Monitor (Sydney), 24 December 1827, 6; 27 December 1827, 6; The Australian (Sydney), 26 December 1827, 2; 28 December 1827, 3).

^[66] The Australian (Sydney), 26 December 1827, 2. However, both the Attorney-General and Solicitor-General’s ‘no hold barred’ approach at the trial belied this assertion. See further below the discussion in Part 7.

^[67] [1832] NSWSupC 8 (Sydney Gazette (Sydney), 17 April 1832, 2). See also Sydney Herald (Sydney), 17 April 1832 2.

^[68] Sydney Gazette (Sydney), 20 October 1842, 2; The Australian (Sydney), 21 October 1842, 3; Sydney Morning Herald (Sydney), 20 October 1842, 2. This was the trial of several convicts for piracy and other offences arising from a bloody mutiny and attempt to seize a ship and escape from Norfolk Island. Several convicts and a soldier were killed in the fracas.

^[69] Sydney Morning Herald (Sydney), 20 October 1842, 2. Though it is significant that Therry’s opening address in Jones did not entirely meet his lofty test, see further below n 193.

^[70] [1841] NSWSupC 43 (Sydney Herald (Sydney), 1 May 1841, 2).

^[71] Sydney Herald (Sydney), 1 May 1841, 2.

^[72] See The Courier (Hobart), 4 August 1843, 4; Colonial Times (Hobart), 1 August 1843, 3.

^[73] The Courier (Hobart), 4 August 1843, 4. It was unclear which prisoner at Point Puer had actually been responsible for the overseer’s death.

^[74] Colonial Times (Hobart), 1 August 1843, 3.

^[75] After 1836 there was a rule of practice encouraging the prosecution to furnish to the defence the evidence of any witness who had not given evidence at committal, see R v Greenslade (1870) 11 Cox CC 412 and 413, n (a).

^[76] This practice despite occasional judicial disapproval is an accepted and well-established procedure and is often employed to the present day by prosecution counsel to ensure that the defence have an opportunity to cross-examine a witness whose testimony is unnecessary or unhelpful to the prosecution case.

^[77] The Courier (Hobart), 4 August 1843, 4.

^[78] Ibid.

^[79] The Attorney’s candid approach in this context should be contrasted with that adopted by the prosecution, or at least the Colonial Secretary, in the 1868 trial of R v O’Farrell, see further below n 308.

^[80] R v Whelan, The Argus (Melbourne), 19 February 1868, 7; 20 February 1868, 6; 21 February 1868, 7, 22 February 1868, 6; 24 February 1868, 4; 25 February 1868, 6. See also The Age (Melbourne), 19 February-25 February 1868.

^[81] An application of the prosecutor’s duty as a minister of justice in the 1800s was its duty to call any material witness in the case in the furtherance of justice, regardless of whether they helped or hindered the prosecution case. See, for example, R v Holden [1839] EngR 234; (1838) 8 Car & P 606, 609-610; R v Carpenter (1844) 1 Cox CC 72; R v Stroner [1845] EngR 594; (1845) 1 Car & K 650. However this view of the prosecutorial duty in calling witnesses was not universally accepted, even in the 1800s. See R v Woodhead [1993] CthArbRp 122; (1847) 2 Car 7 Kir 528, R v Edwards & Others (1848) 3 Cox CC 82; R v Cassidy [1858] EngR 417; (1858) 1 F & F 79. This ‘ancient conflict’ continues to the present day, see R v Mullen (No 2) [1980] NIJB 10.

^[82] The Age (Melbourne), 22 February 1868, 5.

^[83] See R v Bathgate [1946] NSWStRp 21; (1946) 46 SR (NSW) 281, 284-285.

^[84] Sydney Herald (Sydney), 2 March 1837, 2.

^[85] Ibid.

^[86] Ibid. In his opening address before the inaugural sitting of the Supreme Court, Joseph Gellibrand, the Tasmanian Attorney-General, was similarly adamant that he would approach his role without any fear or favour with regard to the defendant’s status. See Hobart Town Gazette (Hobart), 24 May 1826, 2.

^[87] See R v Pearce [1824] TASSup C 11 (Hobart Town Gazette (Hobart), 25 June 1824, 2; ‘Alexander Pearce’, Hobart Town Gazette (Hobart), 6 August 1824, 3; see further below n 111); R v Reardon & Tydey [1824] TASSupC 5 (Hobart Town Gazette (Hobart), 11 June 1824, 2) (murder); R v McCabe [1825] TASSupC 17 (Colonial Times (Hobart), 4 November 1825, 4) (robberies by escaped convict and notorious bushranger); R v Regan & Others [1838] TASSupC 12 (Hobart Town Courier (Hobart), 15 June 1838, 2) (murder by escaped convicts and notorious bushrangers); R v Cam & Denner [1832] TASSupC 19 (Tasmanian, 7 April 1832) (convicts charged with piracy from their effort at escape by seizing a boat); R v Wells [1833] TASSupC 3 (Tasmanian, 22 March 1833) (the commission of an ‘unnatural act’ with a calf); R v Flannigan [1838] NSWSupC 40 (Sydney Gazette (Sydney), 3 May 1838, 2) (murder where insanity raised); R v Neale (Sydney Herald (Sydney), 12 January 1842, 2) (the murder of a police constable in Sydney).

^[88] In England whilst such prosecutorial restraint in favour of ‘gentlemen’ was not unknown (see above n 17), it appears to have been less explicit in England than in Australia. See, for example, R v Jephson (The Times (London), 25 July 1823); R v Seymour & Macklin (The Times (London), 14 March 1828).

^[89] [1834] TASSupC 8 (The Colonist, 10 June 1834; Colonial Times (Hobart), 10 June 1834, 7-8).

^[90] The Colonist, 10 June 1834.

^[91] Colonial Times (Hobart), 10 June 1834, 7.

^[92] The Colonist, 10 June 1834. See the editor’s footnote to the report of the trial.

^[93] Ibid.

^[94] See R v Wright [1829] NSWSupC 70 (The Australian (Sydney), 14 October 1829, 3-4; Sydney Gazette (Sydney), 13 October 1829, 2; Sydney Monitor (Sydney), 17 October 1829, 1-2). See also Editorial, ‘Shooting by Soldiers at Norfolk Island’, The Australian (Sydney), 14 October 1829, 2; Edward Hall, Letter to Sir George Murray, Secretary of State for the Colonies, reproduced in Sydney Monitor (Sydney), 17 October 1829, 2-3; 19 October 1829, 2-3 (Hall was the editor of the Sydney Monitor). Though for a contrary view see Editorial, ‘Captain Wright’, Sydney Gazette (Sydney), 15 October 1829, 2. Wright was the commanding officer at Norfolk Island who was charged with ordering the killing of a violent convict by soldiers under his command. The conspicuously restrained and mild nature of the prosecutor’s opening address to the military jury is especially noteworthy and did not go unnoticed (see Editorial, ‘Shooting by Soldiers at Norfolk Island’, The Australian (Sydney), 14 October 1829, 2).

^[95] See R v Valentine [1842] TASSupC 4 (Launceston Courier, 16 January 1843; Cornwall Chronicle (Launceston), 14 January 1843, 4; Launceston Examiner (Launceston), 11 January 1843, 3); R v Durie [1839] TASSupC 35 (Cornwall Chronicle (Launceston), 12 October 1839, 3).

^[96] See R v Jamieson [1827] NSWSupC 31 (Sydney Gazette (Sydney), 18 May 1827, 2-3; The Australian (Sydney), 18 May 1827, 3-4); R v Jones (Sydney Herald (Sydney), 19 March 1842. 2); R v Bolden (Port Philip Patriot (Melbourne), 6 December 1841); R v Kingshorne (Sydney Herald (Sydney), 1 April 1842, 2). Jamieson and Bolden are also significant in featuring crimes alleged to have been committed upon indigenous victims by ‘respectable’ white defendants. Though the fact that the prosecutions were even brought is significant. The authorities had at least prosecuted Jamieson to the surprise of some quarters and the fact that the local Magistrates after a full investigation had completely exonerated him, see Editorial, The Australian (Sydney), 18 May 1827, 3. Similarly, prosecution counsel proceeded with the trial in Bolden despite the open hostility throughout the proceedings of the trial judge, Willis J, and his conclusion that the Crown had ‘completely failed’ (Port Philip Patriot (Melbourne), 6 December 1841) to sustain its case. Bolden was a neighbour of the judge’s brother. The prosecutor remained steadfast, despite the judge’s strong censure for having brought such a prosecution.

^[97] See R v McIntyre [1833] NSWSupC 86 (Sydney Gazette (Sydney), 15 August 1833, 3); R v Bingle and Were [1837] NSWSupC 25 (The Australian (Sydney), 12 May 1837, 2-3; Sydney Herald (Sydney), 15 May 1837, 2); R v Mackenzie (Moreton Bay Courier (Moreton Bay), 26 November 1853, 2).

^[98] R v Jones (Sydney Herald (Sydney), 19 March 1842. 2). The accused benefitted from an equally sympathetic trial judge and was unsurprisingly ‘immediately’ acquitted. See also R v Wright [1829] NSWSupC 70.

^[99] R v McIntyre [1833] NSWSupC 86 (Sydney Gazette (Sydney), 15 August 1833, 3).

^[100] R v Mackenzie (Moreton Bay Courier (Moreton Bay), 26 November 1853, 2).

^[101] R v Wright [1829] NSWSupC 70 (Sydney Monitor (Sydney), 17 October 1827, 1).

^[102] [1837] NSWSupC 25 (The Australian (Sydney), 12 May 1837, 2-3; Sydney Herald (Sydney), 15 May 1837, 2).

^[103] For an opposing view, see ‘Mr Bingle’s Case’, Sydney Gazette (Sydney), 13 May 1837, 2.

^[104] The Magistrate at the trial asserted that he was a critic of the Governor and there had been political considerations behind his prosecution. This was rejected by both the Attorney-General and the trial judge. See Editorial, Sydney Herald (Sydney), 13 May 1837, 2.

^[105] Sydney Herald (Sydney), 15 May 1837, 2.

^[106] The theft of livestock was a crime viewed with the utmost gravity in early colonial society. See further below nn 264- 266.

^[107] Sydney Herald (Sydney), 15 May 1837, 2.

^[108] Ibid.

^[109] Some of the prosecution witnesses were convicts. The Attorney noted that he was not solely reliant upon their testimony.

^[110] Sydney Herald (Sydney), 15 May 1837, 2. The accused were acquitted but the jury noted that the conduct of both defendants in the case had ‘been marked with great impropriety’ (Ibid).

^[111] [1824] TASSupC 11 (Hobart Town Gazette (Hobart), 25 June 1824, 2; see also ‘Alexander Pearce’, Hobart Town Gazette (Hobart), 6 August 1824, 3). Not only had Pearce murdered and consumed Cox, it transpired that on an earlier escape he had also killed and eaten several of his companions. See further Dan Sprod, Alexander Pearce: Convict – Bushranger – Cannibal (Cat and Fiddle Press, 1977).

^[112] Hobart Town Gazette (Hobart), 25 June 1824, 2.

^[113] Though paternalistic by modern standards.

^[114] See, for example, R v We-War [1842] NSWSupC 1 (Inquirer, 12 January 1842, 4-5). See further the discussion below in Part 8 of this article.

^[115] R v Boatman [1832] NSWSupC 4 (Sydney Gazette (Sydney), 25 February 1832, 3; Sydney Monitor (Sydney), 25 February 1832, 4).

^[116] Though the shepherd had been violently attacked by Boatman during the incident, Boatman was only charged with the theft of the sheep, see further the Editor’s critical note on this and other issues at the end of the report of R v Bulli, Sydney Monitor (Sydney), 25 February 1832, 4.

^[117] See below nn 264 and 265.

^[118] After conviction, the Solicitor-General asked the court to defer sentencing to allow defence counsel to renew his submission that the court had no jurisdiction to try Boatman. After a linked defendant was acquitted of a similar crime (see R v Bulli (Sydney Gazette (Sydney), 25 February 1832, 3; Sydney Monitor (Sydney), 25 February 1832, 4), following the calling of additional witnesses to explain that the defendants would not have been aware that they were committing any crime by taking the sheep, the Solicitor-General asked that Boatman be discharged and treated as though he had been acquitted on the basis that he was confident that had the additional witnesses been called at Boatman’s trial, the jury’s verdict would have been different. The trial judge, Dowling J, commended the Solicitor-General for his conduct and concurred with this course of action. For a different view of the prosecutor’s approach, see the Editor’s critical note at the conclusion of the report of R v Bulli, Sydney Monitor (Sydney), 25 February 1832, 4.

^[119] [1840] NSWSupC 78 (Sydney Herald (Sydney), 5 November 1840, 2; Sydney Monitor (Sydney), 5 November 1840, 2).

^[120] Sydney Herald (Sydney), 5 November 1840, 2.

^[121] Ibid. See also R v Dundomah & Others [1840] NSWSupC 82 (Sydney Herald (Sydney), 10 November 1840, 2); R v Anon (Sydney Morning Herald (Sydney), 9 September 1842, 3) (the accused was simply called the ‘Black Cattle Stealer’); R v Naltia and Moullia (South Australian Register, 25 March 1843, 3; see also Editorial, ‘The Native Murderers’, South Australian Register, 25 March 1843, 3) for other instances of prosecutorial fairness to Aboriginal defendants. One should also note that in the face of considerable local resistance, colonial prosecutors had insisted in cases such as R v Jamieson [1827] NSWSupC 31; R v Kilmeister (No 2) [1838] NSWSupC 110 and R v Bolden (Port Philip Patriot (Melbourne), 6 December 1841) on prosecuting white defendants charged with serious crimes directed at Aborigines. However, this reasoning should not be stretched too far given the wider failings of the authorities in this regard. A massacre of up to 300 Aborigines in early 1838 by troops under a Major Nunn did not result in any prosecution, see Greg Woods, A History of Criminal Law in New South Wales: The Colonial Period 1788-1900 (Federation Press, 2002) 96. It has been argued that the white reaction to the prosecution, conviction and execution of the defendants in R v Kilmeister (No 2) was so powerful that prosecutors were deterred from undertaking future similar prosecutions, not just to the remaining defendants in Kilmeister and Major Nunn, but also to the many other crimes committed on Aborigines by whites during this period, see Ibid; Kercher (1995), above n 52, 14-15. See further Roger Milliss, Waterloo Creek: The Australia Day Massacre of 1838 and George Gipps and the British Conquest of New South Wales (Penguin Books, 1992).

^[122] See above the discussion in Part I of this article.

^[123] See also the cases listed above at n 87.

^[124] See Cottu, above n 6, 87-89; Showell Rogers, ‘The Ethics of Advocacy’ (1897) 59 Law Quarterly Review 259, 259-260. See also the commentary to R v Berens (1865) 4 F & F 843, n (b) to similar effect.

^[125] Editorial, Sydney Herald (Sydney), 15 September 1834, 2. See also Joan Goodrick, Life in Old Van Diemen’s Land (Rigby, 1977) 68; Michael Sturma, Vice in a Vicious Society; Crime and Convicts in mid 19^th Century New South Wales (University of Queensland Press, 1983) 64, 94-95.

^[126] See further the discussion below at Part 8.

^[127] See Kercher (1995), above n 52, 103-104.

^[128] In 1824 when the Supreme Court of Tasmania was established about half of Tasmania’s white population were convicts. Even as late as 1847, 34% of the island’s white population were convicts, see Richard Davis, The Tasmanian Gallows: A Study of Capital Punishment (Cat & Fiddle Press, 1974) 255. In NSW in 1820, 45% of the white population were convicts but even as late as 1841, 29% of the population were convicts and only 13% were free emigrants (another 30 odd % were former convicts), see Neal, above n 34, 200-201.

^[129] See Hughes, above n 32, 231.

^[130] Such English cases as R v Patch in 1806 involving the murder of a social ‘superior’ and R v Courvoisier in 1840 involving the murder by a servant of his eminent aristocratic employer fall within this category. See further, above n 23 and below n 187.

^[131] See the cases cited above at nn 19, 22 and 27, where counsel in England acted with moderation despite prosecuting defendants who could be regarded as ‘enemies of society’.

^[132] [1824] TASSupC 15 (Hobart Town Gazette (Hobart), 25 June 1824, 2).

^[133] Hobart Town Gazette (Hobart), 25 June 1824, 2.

^[134] Ibid.

^[135] Ibid.

^[136] Ibid.

^[137] Colonial Times (Hobart), 27 April 1841, 2; The Courier (Hobart), 27 April 1841, 4.

^[138] Ibid.

^[139] Ibid. The defendants escaped the death penalty after the victim was found unable to give sworn evidence.

^[140] [1841] NSWSupC 7 (Sydney Herald (Sydney), 25 February 1841, 2; The Australian (Sydney), 25 February 1841, 2; Sydney Gazette (Sydney), 27 February 1841, 2).

^[141] See also the similar sentiments about the evils of bushrangers and the need to deter others who may also have been inclined to become bushrangers expressed in R v Whitton (Sydney Herald (Sydney), 26 February 1840, 2) (by both the prosecutor and the trial judge); R v Thomas and John Clark (Sydney Morning Herald (Sydney), 29 May 1867, 3) (the trial judge, Sir Alfred Stephen, in particularly forceful terms).

^[142] Sydney Herald (Sydney), 25 February 1841, 2. See also Sydney Gazette (Sydney), 27 February 1841, 2.

^[143] Cornwall Chronicle (Launceston), 9 April 1853, 2; Launceston Examiner (Launceston), 9 April 1853, 4-5.

^[144] Editorial, ‘Bushranging – Executive Reports and Acts’, Launceston Examiner (Launceston), 27 January 1853, 2. It was noted that Dalton’s ‘colonial career of crime blackened three sheets of parchment’. His crimes included rape and even previous bushranging for which he had been originally sentenced to hang but had been reprieved and sent to Norfolk Island. See Ibid; Davis, above n 128, 44.

^[145] Editorial, ‘Extraordinary Capture of Dalton and Subsequent Apprehension of Kelly, the Van Diemen’s Land Bushrangers and Murderers’, The Argus (Melbourne), 7 February 1853, 3.

^[146] ‘Tasmania’, Sydney Morning Herald (Sydney), 12 February 1853, 1S.

^[147] Launceston Examiner (Launceston), 9 April 1853, 5. These comments did not attract universal praise. One editor described them as ‘cant’ and argued that the Attorney-General had prosecuted far more ‘atrocious’ crimes, see Editorial, ‘Criminal Sessions’, Launceston Examiner (Launceston), 9 April 1853, 3.

^[148] There is an argument that the crimes of the Kelly Gang can be viewed in a political light. The authors do not wish to enter into the long running historical debate about Kelly’s status. As Jacobs notes, ‘Many people thought – and still think – that they [the Kelly gang] were more sinned against than sinning’ (see Phillip Jacobs, Famous Australian Trials (Robertson & Mullens Ltd, 1942) 78). The authors, like Jacobs, consider that it is best to ‘let others decide whether this is true’ (Ibid).

^[149] The gang’s activities attracted intense press scrutiny throughout Australia, see Alex Castles and Jennifer Castles, Ned Kelly’s Last Days: Setting the Record Straight on the Death of an Outlaw (Allen & Unwin, 2005) 80-88.

^[150] See Ian Jones, Ned Kelly: A Short Life (Lothian Books, 1995) 173, 210-227, 283 and 301.

^[151] James Keneally, The Complete History of the Kelly Gang and their Pursuers (Robertson & Mullen, 1955) 282.

^[152] See the report of the proceedings in R v Kelly, The Age (Melbourne), 7 August 1880, 5-6. See also Jones, above n 150, 293.

^[153] The defence complained about various aspects of the proceedings, including the prosecution’s refusal to furnish them with the depositions of the prosecution witnesses.

^[154] The Age (Melbourne), 7 August 1880, 6. See also Jones, above n 150, 293; John Phillips, The Trial of Ned Kelly (Law Book Co, 1987) 11-12.

^[155] See The Age (Melbourne), 19, 29 and 30 October 1880; The Argus (Melbourne), 19 October 1880, 6; 29 October 1880, 6; 30 October 1880, 8; Phillips, above n 154, for detailed accounts of the trial.

^[156] Jones, above n 150, 304.

^[157] The Age (Melbourne), 30 October 1880. The recitation of Smyth’s closing speech by Phillips, above n 154, 72-75, is considerably edited.

^[158] The Age (Melbourne), 30 October 1880.

^[159] See also the zealous prosecution of bushrangers in R v Evans [1824] TASSupC 21 (Hobart Town Gazette (Hobart), 12 November 1824, 3); R v Read & Lancaster (Launceston Examiner (Launceston), 8 April 1843, 6); R v Reid & Others (Colonial Times (Hobart), 2 April 1844, 3); R v Whelan (Colonial Times (Hobart), 10 December 1847, 3; The Courier (Hobart), 11 December 1847, 2-3); R v Fordyce & Others in 1863 (see Noel Thurgood, The Gold Escort Robbery Trials (Kangaroo Press, 1988) 18-21).

^[160] See Editorial, ‘The Bush-Ranger: Dreadful Outrages and Murder!,’ Colonial Times (Hobart), 10 March 1826, 2. Therry commented that bushrangers had been the ‘terror’ (Therry, above n 52, 43) of New South Wales and in the 1830s it had been ‘positively perilous to venture from Sydney, in consequence of the daring of the bushrangers’ (Ibid, 123).

^[161] See, for example, Greg Woods, A History of Criminal Law in New South Wales: The Colonial Period 1788-1900 (Federation Press, 2002) 203-206; Henry Parkes, Fifty Years in the Making of Australian History (Longmans, 1892) 180-186.

^[162] See Hughes, above n 32, 203-243; Editorial, above n 160, 2; Editorial, Colonial Times (Hobart), 14 April 1826, 2; Woods, above n 161, 77-78; Castles, above n 47, 79-80.

^[163] Hughes, above n 32, 234.

^[164] Editorial, above n 160, 2.

^[165] Ibid.

^[166] Ibid. See further Lloyd Robson, A History of Tasmania (Oxford University Press, 1983) 78-105.

^[167] Hughes, above n 32, 228. See also James Boyce, Van Diemen’s Land (Black Inc, 2008) 71-83. Such fears were still been expressed in Tasmania as late as the 1850s, see Editorial, ‘Bushranging’, Colonial Times (Hobart), 18 January 1853, 2.

^[168] Boyce, above n 167, 74.

^[169] See John Hirst, The Strange Birth of Colonial Democracy: New South Wales 1848-1884 (Allen & Unwin, 1988) 217-241; Woods, n 161, 203-206.

^[170] Hughes, above n 32, 234.

^[171] Boyce, above n 167, 77.

^[172] Alan Atkinson, The Europeans in Australia, a History: Volume 2, Democracy (Oxford University Press, 2004) 69.

^[173] See, for example, James Mudie, The Felonry of New South Wales (Landsowne Press, 1964) 113 and 116.

^[174] R v Kenney, The Courier (Hobart), 6 March 1847, 3. See also Davis, above n 128, 40.

^[175] The Courier (Hobart), 6 March 1847, 3.

^[176] Hughes, above n 32, 231.

^[177] R v Kilmeister (No 2) [1838] NSWSupC 110 (Sydney Monitor (Sydney), 19 November 1838, 1S).

^[178] Sydney Herald (Sydney), 17 May 1838, 2; Sydney Gazette (Sydney), 19 May 1838, 2.

^[179] Ibid.

^[180] Launceston Examiner (Launceston), 8 April 1843, 6.

^[181] Ibid.

^[182] [1832] TASSupC 32 (Tasmanian, 7 December 1832). See also R v Burgess & Others [1824] TASSupC 28 (Hobart Town Gazette (Hobart), 10 December 1824, 2-3) (‘the magnitude and ruinous frequency of burglarious pillage in the Colony’); R v Broadhead & Others (Colonial Times (Hobart), 2 September 1825, 1S) (the ‘vital importance’ of putting an end to the crime of robbery at night of a dwelling which was ‘one of the most dangerous tendency in a Colony’ where the settlers were in the ‘most isolated and defenceless condition’); R v Cavenagh & Others (Sydney Herald (Sydney), 13 April 1842, 2) (two escaped convicts who had shot at the Colonial Secretary and a Captain Hunter prompted the Attorney-General’s strong regret that the ‘atrocious’ offence no longer carried the death penalty); R v Vout & Steele (Sydney Herald (Sydney), 9 September 1841, 2-3) (regret that the death penalty was not available as a sentencing option during the robust prosecution of two convicts for the ‘aggravated robbery’ at the home of a Reverend and his wife); R v Burdett & Others (Sydney Morning Herald (Sydney), 17 July 1844, 3; Morning Chronicle, 17 July 1844, 2) (an emotive prosecution of three men for committing an armed burglary of a house on a Sunday ‘in the heart of the City of Sydney’ and murdering the householder as he was reading his prayers and was just about to attend Church).

^[183] Most early bushrangers were escaped convicts. It is unsurprising that by 1830 it was a capital offence in Australia to escape from a penal settlement, see Davis, above n 128, 28.

^[184] Tasmanian, 7 December 1832.

^[185] Hughes, above n 32, 234. Hughes is referring to the Irish convict rebellion at Castle Hill in 1804. There was a particular fear of the Irish convicts, see Ibid, 181-195; Moore above n 35, 101-120. As Naidis notes, ‘Every Irish convict was thought to harbour treason, treachery and murder,’ see Mark Naidis, ‘Review: The Women of Botany Bay: A Reinterpretation of the Role of Women in the Origins of Australian Society’ [1991] American History Review 588. Hirst disagrees and asserts that the rulers and local colonists in Australia did not live in fear and were remarkably untroubled by thoughts of a convict rebellion, whether by the Irish or otherwise, see Hirst, above n 34, 135.

^[186] [1825] NSWSupC 4 (The Australian (Sydney), 27 January 1825, 2; Sydney Gazette (Sydney), 27 January 1825, 2-3).

^[187] To further aggravate the crime, the female accused, Eliza Campbell, ‘the adulteress’, not only played an active role in the actual murder but she was said to have procured its commission through sleeping with her master, ‘a married man – a tottering old man’. See Editorial, Sydney Gazette (Sydney), 27 January 1825, 2.

^[188] Petit treason was a crime that was an aggravated form of murder. The crime involved the murder of a person to whom the offender owed some duty of subjection such as a wife killing her husband (but not vice versa) or a servant killing his or her master. Petit treason was considered even worse than normal murder as it was said to involve the betrayal of trust of a superior by a subordinate. It was to remain a distinct offence in England until 1828. The rationale for such a crime was that society rested on a framework in which each person had his or her appointed place and such murders were seen as threatening this framework of society. This notion of vigorous prosecution of such defendants who could be perceived as a ‘threat to society’ also emerges from some of the English cases of ‘petit treason’ of the period showing similar prosecutorial zeal as in Benson confronting such defendants. See, for example, R v Patch in 1806, above n 23.

^[189] Sydney Gazette (Sydney), 27 January 1825, 2.

^[190] Ibid.

^[191] [1834] NSWSupC 81 (Sydney Gazette (Sydney), 13 September 1834, 1S).

^[192] Prosecution counsel noted that the object of the plot had been to kill the garrison, violate the females of the island and then escape.

^[193] Ibid. See also the trial of the convicts implicated in a later mutiny at Norfolk Island in R v Jones & Others (Sydney Gazette (Sydney), 20 October 1842, 2; Sydney Morning Herald (Sydney), 20 October 1842, 2-3) where Therry’s final comment was to implore the jury ‘by their verdict to show that, however, successful crime may be, the arm of the law is strong, and will sooner or later overtake and punish persons guilty of crimes such as these charged against the prisoners’ (Ibid, 2).

^[194] The Age (Melbourne), 14 April 1857, 5-6; 15 April 1857, 5-6.

^[195] R v Brannigan & Others (The Age (Melbourne), 21 April 1857, 3). See also R v Langham (Colonial Times (Hobart), 26 July 1842, 3) where the accused was a convict charged with a serious assault upon an inmate at Port Arthur after he had been acquitted the day before of a capital assault upon the medical officer at Port Arthur. The Attorney-General defended capital punishment and remarked ‘in a very feeling manner upon the ferocious brutality of the prisoner’ and ascribed inhuman motives for the crime as would befit a beast (Ibid).

^[196] There was a spate of prosecutions of media proprietors for alleged seditious libel during Governor Darling’s tenure, see further Brendan Edgeworth, ‘Defamation Law and the Emergence of a Critical Press in Colonial New South Wales (1824-1831)’ (1990) 6 Australian Journal of Law and Society 50. Wardell and another barrister, Charles Wentworth, incurred the Governor’s wrath for their strong criticism of many of his actions.

^[197] See also R v Hall (No 2) [1829] NSWSupC 23 (The Australian (Sydney), 15 April 1829, 3; Sydney Gazette (Sydney), 14 April 1829, 2-3); R v Hall (No 3) (The Australian (Sydney), 17 April 1829, 2-3; Sydney Gazette (Sydney), 18 April 1829, 2).

^[198] R v Wardell (No 3) [1827] NSWSupC 77 (Sydney Gazette (Sydney), 26 December 1827, 2-3; The Australian (Sydney), 26 December 1827, 2-3; Sydney Monitor (Sydney), 24 December 1827, 6-7; 27 December 1827, 6-7).

^[199] [1827] NSWSupC 55 (Sydney Gazette (Sydney), 17 September 1827, 3; 3 October 1827, 2-3; The Australian (Sydney), 3 October 1827, 2-3; Sydney Monitor (Sydney), 1 October 1827, 7). The first prosecution of Wardell for seditious libel in R v Wardell (No 1) [1827] NSWSupC 44 (The Australian (Sydney), 29 June 1827, 3) had collapsed on technical grounds.

^[200] See Editorial, The Australian (Sydney), 3 August 1827, 2-3. The strong attack on the Governor was as a result of his efforts, despite judicial and press opposition, to impose a tax on the sale of newspapers, which as Woods notes, would have ‘crushed the infant free press in New South Wales’, see Woods, above n 161, 50-51.

^[201] Editorial, The Australian (Sydney), 3 October 1827, 2.

^[202] Ibid. Though given Wardell’s considerable if loquacious legal skills this may not have been the mismatched contest as may have first appeared.

^[203] The impartiality of a military jury, as was forcibly outlined in R v Wardell (No 3) (Sydney Monitor (Sydney), 24 December 1827, 6-7) in a case, directly relating to the conduct of the Governor, their commanding officer, was questionable.

^[204] Sydney Monitor (Sydney), 1 October 1827, 7. The logic of the Attorney-General’s argument was that the large convict population might be dangerously emboldened by such criticism of the Governor.

^[205] The Chief Justice commented that if prosecution counsel insisted on a right of reply, then the court could not prevent this, see Ibid [emphasis of Sydney Monitor].

^[206] This was notwithstanding the usual prosecutorial practice to the contrary when the defence had called no witnesses. The ability to secure the last address to the jury in the 1800s was highly valued by defence counsel and was a powerful consideration in the trial tactics of the period, see Cairns (1998), above n 8, 107-108.

^[207] Sydney Monitor (Sydney), 1 October 1827, 7.

^[208] Ibid.

^[209] The jury were unable to agree on a verdict and the prosecution abandoned its efforts.

^[210] [1827] NSWSupC 77 (Sydney Gazette (Sydney), 26 December 1827, 2-3; The Australian (Sydney), 26 December 1827, 2-3; Sydney Monitor (Sydney), 24 December 1827, 6-7; 27 December 1827, 6-7). Though this should be contrasted with the less strident approach adopted in R v Hayes [1829] NSWSupC 24 (Sydney Gazette (Sydney), 16 April 1829, 2-3).

^[211] Sydney Monitor (Sydney), 24 December 1827, 7.

^[212] Sydney Gazette (Sydney), 26 December 1827, 2.

^[213] Ibid. A reporter noted that ‘a solitary hiss was heard on the rising of the Solicitor-General to reply’, see Editorial, Sydney Monitor (Sydney), 24 December 1827, 6. The prosecution again secured the all-important last word with the jury, see above n 206.

^[214] Sydney Monitor (Sydney), 27 December 1827, 7.

^[215] Woods notes that the military officers on the jury resented the Governor’s ‘heavy handed’ pressure upon them to convict, see Woods, n 161, 55. Wardell was later, ironically given his liberal views on criminal justice issues, murdered by convict bushrangers.

^[216] See The Age (Melbourne), 5 December 1854, 4, quoting a Colonel Macarthur.

^[217] See G Rushden, History of Australia (Vol ii) (Melbourne, 1884) 680; Geoffrey Serle, The Golden Age: A History of the Colony of Victoria, 1851-1861 (Melbourne University Press, 1963) 173; dispatch from Sir Charles Hotham to Sir George Gray dated 20 December 1854 reproduced in ‘Eureka Documents’ in FB Smith (ed), Historical Studies: Eureka Supplement (2^nd ed) (Melbourne University Press, 1965) 28, 33. Though it is beyond the scope of this article to embark upon a detailed consideration of the causes of the Eureka Stockade, historians generally agree that it was motivated by genuine resentment at the high licence fee to dig for gold and corrupt and heavy handed local officialdom rather than by any revolutionary desire to overthrow the colonial government. See, for example, Henry Turner, Our Little Rebellion: The Story of the Eureka Stockade (Whitcombe and Tombs, 1912) 15-46; Geoffrey Serle, ‘The Causes of Eureka’ in Smith, above n 217, 42-54.

^[218] William Stawell, 22 February 1855, quoted at the ‘Eureka on Trial’ site of the Public Record Office of Victoria, <http://eureka.imagineering.com.au/home.htm> .

^[219] See The Age (Melbourne), 26 February 1855, 4; South Australian Register, reproduced in The Age (Melbourne), 16 March 1855, 6.

^[220] Editorial, ‘The Counsel of Ahitophel,’ The Age (Melbourne), 28 February 1855, 4. The ‘Counsel of Ahitophel’ is a Biblical reference to a counsel known for his treachery, the ‘brother of insipidity and impiety’ (Ibid).

^[221] See The Age (Melbourne), 27 February 1855, 4; 28 February 1855, 4; The Age (Melbourne), 21 March 1855. See also above n 7.

^[222] The Age was highly critical of Stawell but it must be borne in mind that it was sympathetic to the cause of the miners. By contrast the conservative Argus was generally sympathetic to the official line on the Eureka Stockade but even it was critical of aspects of the prosecution, see Editorial, The Argus (Melbourne), ‘The State Trials,’ 28 February 1855, 4.

^[223] See R v Joseph (Joseph was a black American man and the first of the Eureka Stockade defendants to be tried) (The Age (Melbourne), 24 February 1855, 4-5; 26 February 1855, 5; The Argus (Melbourne), 23 February 1855, 5); R v Manning (The Age (Melbourne), 27 February 1855, 4-5; The Argus (Melbourne), 27 February 1855, 5). There are particular features worthy of note in R v Joseph, notably why Joseph was singled out for prosecution for the first trial given his minor role in the uprising. See Daniel Potts and Annette Potts, ‘The Negro and the Australian Gold Rushes, 1852-1857’ (1968) Pacific History Review 381, 395; Jeffrey Atkinson and David Roberts, ‘“Men of Colour”: John Joseph and the Eureka Stockade Treason Trials’ (2008) 10 Journal of Australian Colonial History 75-98; LG Churchward, ‘Americans and other Foreigners at Eureka’ in Smith, above n 217, 78, 82-85.

^[224] See the report to The State Trials in The Age (Melbourne), 28 February 1855, 5. It is illustrative to compare how such an expression of personal opinion, even outside of court, by a modern prosecutor would not be countenanced by a court and would be likely to disqualify prosecution counsel from acting. See R v MG [2007] NSWCCA 57; (2007) 69 NSWLR 20.

^[225] See the report to The State Trials in The Age (Melbourne), 28 February 1855, 5.

^[226] See Editorial, ‘The Counsel of Ahithophel’, The Age (Melbourne), 28 February 1855, 4.

^[227] John Molony, Eureka (Melbourne University Press, 2001) 185.

^[228] Ibid, 191.

^[229] Editorials, ‘Why the Trials are Postponed’ and ‘Tampering with the Jury’, The Age (Melbourne), 2 March 1855, 4; Ovens and Murray Advertiser, ‘The State Trials’ reproduced in The Age (Melbourne), 18 March 1855, 6.

^[230] Malony, above n 227, 185. See also Editorial, ‘The State Trials’, The Argus(Melbourne), 28 February 1855, 4.

^[231] See R v Hayes (The Age (Melbourne), 20 March 1855, 4-5; 21 March 1855, 4-5; The Argus (Melbourne), 20 March 1855, 5; 21 March 1855, 5-6); R v Raffaelo (The Age (Melbourne), 22 March 1855, 4-5); R v Vannick (The Age (Melbourne), 23 March 1855, 4-5); R v Tumney & Beattie (The Age (Melbourne), 24 March 1855, 5); R v Read & Others (The Age (Melbourne), 27 March 1855, 5; 28 March 1855, 4-5).

^[232] Though Stawell denied any such motivation, see his closing address in R v Read, The Age (Melbourne), 28 March 1855, 5.

^[233] John Phillips, ‘Was Justice Really Done,’ (Speech delivered at the University of Ballarat Democracy Conference, Ballarat, 25-27 November 2004) <http://www.abc.net.au/ballarat/stories/s1260652.htm> .

^[234] Ibid. This was a costly error on Stawell’s part. It enabled the defence at trial, as Phillips notes, ‘to confess to the riot, and to laugh at the treason,’ see John Phillips, ‘The Eureka Advocates: Part 1’ (1990) 32 Australian Law Journal 211. Stawell was later to serve as a distinguished Chief Justice of Victoria.

^[235] See R v Jamieson [1827] NSWupC 31; R v Bolden (Port Philip Patriot (Melbourne), 6 December 1841).

^[236] See, for example, R v We-War [1842] NSWSupC 1 (Inquirer, 12 January 1842, 4-5); R v Dundali (Moreton Bay Courier (Moreton Bay), 25 November 1854, 2).

^[237] See R v Merrido & Nengavil [1841] NSWSupC 48 (Sydney Gazette (Sydney), 18 May 1841, 2; Sydney Monitor (Sydney), 17 May 1841, 2). This linking of cannibalism and Aborigines was not unique in 19th century British legal and popular thinking. See, for example, R v Jamieson [1827] NSWSupC 31. See further Katherine Biber, ‘Cannibalism and Colonialism’ [2005] SydLawRw 33; (2005) 27 Sydney Law Review 623.

^[238] Trial judges were also not immune from such pronouncements. See, for example, R v Wellington (Australasian Chronicle, 13 September 1842, 3) where Dowling CJ commented on ‘these outrageous blacks who were as outrageous as ever.’

^[239] [1842] NSWSupC 1 (Inquirer, 12 January 1842, 4-5).

^[240] Ibid. The defence counsel mounted an unsuccessful challenge to the jurisdiction of the court to try the accused. This chiefly related to the issue of whether Western Australia was a settled or conquered colony.

^[241] The prosecutor’s zealous approach in We-War should be contrasted with that shown in other early cases involving Indigenous accused. See further above n 121.

^[242] Inquirer, 12 January 1842 5.

^[243] Ibid. See further ‘Murder by Natives,’ Perth Gazette and WA Journal, 25 May 1839, 3.

^[244] Inquirer, 12 January 1842 5.

^[245] The sentence of death for the accused was commuted to transportation for life to Rottnest Island.

^[246] See, for example, R v Kilmeister (No 2) [1838] NSWSupC 110. Plunkett was known for his particular commitment to protecting Aborigines in New South Wales (see Woods, n 162, 140, n 7) and for his active support of ‘every measure tending to equalise the social conditions and to promote civil and religious liberty amidst the various, and often hostile, elements of this Colony’ (Editorial, Sydney Morning Herald (Sydney), 10 February 1858, 4). See further John Molony, John Hubert Plunkett: An Architect of Freedom in New South Wales, 1832-1869 (Australian National University Press, 1973).

^[247] [1839] NSWSupC 61 (Sydney Herald (Sydney), 19 August 1839, 2S; The Australian (Sydney), 17 August 1839, 2).

^[248] The Australian (Sydney), 17 August 1839, 2. These unsympathetic comments should be contrasted with Plunkett’s approach in other cases concerning Aborigines, notably, though by no means solely, his determination in Kilmeister in the face of strong opposition to prosecute the white defendants charged with the murder of Aborigines. Plunkett ‘fought the case with a commitment far beyond the call of duty’ (Milliss, above n 121, 505). See also Therry, above n 52, 282. See also the fairness with which Plunkett undertook the prosecution of Aboriginal defendants in R v Dundomah & Others [1840] NSWSupC 82 (Sydney Herald (Sydney), 10 November 1840, 2); R v Billy [1840] NSWSupC 78 and his general commitment in this area, see further above n 246.

^[249] Even to the point of insisting that the trial judge make a formal note of his objections.

^[250] Sydney Herald (Sydney), 19 August 1839, 2S. This description did not meet with the favour of the trial judge.

^[251] Plunkett justified this position by reference to the practice in his native Ireland where he asserted that a legally represented defendant who was unable to speak English did not have the proceedings translated.

^[252] [1840] NSWSupC 44 (Sydney Herald (Sydney), 12 August 1840; 1S (trial); 14 August 1840, 1S (sentence)).

^[253] Therry’s comments in Tallboy should be contrasted with his minister of justice approach in R v Anderson & Others [1832] NSWSupC 8 (Sydney Gazette (Sydney), 17 April 1832, 2; see also above n 1); R v McIntyre [1833] NSWSupC 86 (Sydney Gazette (Sydney), 15 August 1833, 3).

^[254] This is a reference to R v Kilmeister (No 2) [1838] NSWSupC 110, the Myall Creek case. The trial judge, Stephen J, cautioned the jury against being influenced by the prosecutor’s reference to that case.

^[255] Sydney Herald (Sydney), 12 August 1840, 1S. The threat posed to white society by conduct such as that attributed to Tallboy and the need to deter similar conduct by other Aborigines was repeated by the trial judge, Stephen J, in his comments in passing the death sentence, see Sydney Herald (Sydney), 14 August 1840, 1S. See also the similar comments in R v Peter of both prosecution counsel (Sydney Morning Herald (Sydney), 21 February 1851, 2) and the trial judge (Sydney Morning Herald (Sydney), 24 February 1851, 2) during the trial and sentence of an Aboriginal man for the rape of a white woman highlighting the ‘utmost importance’ of protecting white women, especially in the interior, from such crimes by Aborigines and the need for them to be ‘visited with the utmost severity’: Ibid.

^[256] [1841] NSWSupC 48 (Sydney Gazette (Sydney), 18 May 1841, 2; Sydney Monitor (Sydney), 17 May 1841, 2).

^[257] Sydney Gazette (Sydney), 18 May 1841, 2.

^[258] South Australian Gazette and Colonial Register, 25 May 1839, 4.

^[259] Ibid. Equally startling was the prosecutor’s assertion, ‘It has hitherto been the proud boast of the colonists of South Australia that they have, by their usage to their dark brethren, the native inhabitants of the country, shown an example to the civilized world; and that while almost every other colony in the world has been polluted by the blood of its native inhabitants, in South Australia no settler has ever imbrued his hands in the blood of his dark brother’ (Ibid). Such a claim is untenable, see further below n 262.

^[260] South Australian Gazette and Colonial Register, 25 May 1839, 4. As late as 1861 one can still find prosecution counsel expressing this theme in the prosecution of Indigenous defendants, see R v Warretya & Others (South Australian Advertiser, 18 May 1861, 3).

^[261] Woods, n 162, 86.

^[262] There is considerable literature in this area, both historical (see, for example, R v Johnston and Others [1824] NSWSupC 6 (Sydney Gazette (Sydney), 12 August 1824, 2-3); Roderick Flanagan, The Aborigines of Australia (George Robertson and Co, 1888) 130; Alexander Harris, Settlers and Convicts (reprint) (Melbourne University Press, 1964) (Original, 1847) 206-226, especially 212) and modern (see, for example, Bain Attwood and SG Foster, Frontier Conflict: the Australian Experience (National Museum of Australia, 2003); John Connor, The Australian Frontier Wars, 1788-1838 (UNSW Press, 2002); Robert Foster et al, Fatal Collisions: the South Australian Frontier and the Violence of Memory (Wakefield Press, 2001); Ann McGarth, Contested Ground: Australian Aborigines under the British Crown (Allen & Unwin, 1995); Alan Pope, Resistance and Retaliation: Aboriginal-European Relations in early Colonial South Australia (Heritage Action, 1989); Henry Reynolds, The Other Side of the Frontier: An Interpretation of the Aboriginal Response to the Invasion and Settlement of Australia (James Cook University, 1981); Henry Reynolds, Frontier: Aborigines, Settlers and Land (Allen & Unwin, 1987); Clive Turnbull, Black War: The Extermination of the Tasmanian Aborigines (Cheshire, 1965). However, for an opposing view see Keith Windshuttle, The Fabrication of Aboriginal History: Volume 1: Van Dieman’s Land 1803-1847 (Macleay Press, 2002). Windshuttle asserts that both the number of Aborigines killed and the level of racial conflict in colonial Australia has been exaggerated, although even he acknowledges that there was significant frontier violence involving Aborigines, albeit he asserts of a law and order ‘criminal’ variety. It is beyond the scope of this article to enter into what Woods describes as ‘the extensive debate about how many Aborigines were killed by white settlers’ (Woods, n 162, 86, n 79). Wood argues that eventually the view offered by Windshuttle ‘will be dismissed as defiant of the evidence’ (Ibid). See also Steven Churches, ‘Book Review: The Fabrication of Aboriginal History’ [2003] AdelLawRw 11; (2003) 24 Adelaide Law Review 113.

^[263] See R v Mossman & Welsh [1835] NSWSupC 1 (Sydney Herald (Sydney), 5 February 1835, 2) (the ‘great importance’ in deterring the ‘serious evils’ of convicts trying to escape from NSW); R v Silvester [1841] NSWSupC 15 (Sydney Herald (Sydney), 8 February 1841, 2) (the ‘imperative duty’ of all involved in the administration of justice to curb the ‘brutal’ sport of prize fights; see also R v Jacques & Others (Sydney Sydney Monitor (Sydney), 22 August 1832, 4)); R v Peake & Others (Sydney Herald (Sydney), 18 April 1842, 2) (the ‘utmost importance’ in not allowing insubordination on a whaling ship to go unpunished); R v Burt (Sydney Morning Herald (Sydney), 17 January 1843, 2) (the Attorney-General in both his open and closing addresses vigorously urged the conviction of the accused for fraudulent trading whilst insolvent as ‘no person trading in this commercial community would be safe’ if ‘the most monstrous frauds he had ever heard of’ were allowed to go unpunished); R v Chantry & Harris (Colonial Times (Hobart), 29 May 1846, 3) (prosecution counsel urged the jury to mark their ‘reprehension’ of the defendants who were accused of theft from their employer); R v Booker (Sydney Morning Herald (Sydney), 13 February 1854, 4) (the Attorney-General during a trial for bigamy ‘expressed his fears that this was a crime but too common and too seldom punished’ and then ‘dwelt upon its great danger to the best interests of society’).

^[264] See also R v Montgomery (Moreton Bay Courier (Moreton Bay), 10 October 1857, 3); the comments of Pedder CJ in R v Clayton & Others (Hobart Town Gazette (Hobart), 23 June 1827, 4-5). See also the similar prosecutorial approach in R v Foley & Pratt (Colonial Times (Hobart), 13 May 1834, 7) during the trial of two cattle thieves. See further Davis, above n 128, 25-27; Castles, above n 47, 261.

^[265] [1824] TASSupC 4 (Hobart Town Gazette (Hobart), 2 July 1824, 2-3).

^[266] This offence carried the death penalty in Tasmania until 1836 and it was not uncommon for offenders to be hanged for this crime. See the reports of the executions of the defendants in R v Clayton & Others (‘Execution’, Colonial Times (Hobart), 6 July 1827, 4); R v Davis & Others (‘Execution’, Colonial Times (Hobart), 22 September 1826, 3). See further Davis, above n 128, 25-27.

^[267] Hobart Town Gazette (Hobart), 2 July 1824, 2. See also ‘Remarks’, Colonial Times (Hobart), 22 September 1826, 3.

^[268] Though crimes against property were viewed with general disfavour at this time (see Hay, above n 16, 17), forgery was signalled out for particular attention and zeal in enforcement as a crime that threatened the very basis of society, see Randall McGowen, ‘Managing the Gallows: the Bank of England and the Death Penalty’ (2007) 25 Law and History Review 241; Randall McGowen, ‘Making the ‘Bloody Code’? Forgery Legislation in eighteenth century England’ in Norma Landau (ed), Law, Crime and English Society 1600-1830 (Cambridge University Press, 2002) 117, 119; the comments of Stephen J at the opening of the Bathurst Circuit Court in 1842, see ‘Assize Intelligence’, Sydney Morning Herald (Sydney), 30 September 1842, 3.

^[269] See, for example, the similar robust prosecutions in R v Gelden & Davis (Hobart Town Gazette (Hobart), 18 June 1824, 2-3); R v Clarke & Others (Hobart Town Gazette (Hobart), 2 July 1824, 2); R v James (Sydney Morning Herald (Sydney), 30 September 1842, 2); R v Whitehouse & Others (South Australian Register, 13 June 1846, 3); R v Korff (Sydney Morning Herald (Sydney), 7 April 1852, 2).

^[270] See, for example, the robust prosecution in R v Tougher & Kelly (Sydney Gazette (Sydney), 7 November 1839, 3; Sydney Herald (Sydney), 8 November 1839, 2) (assault with intent to ‘ravish’ a female); R v Peter (Sydney Morning Herald (Sydney), 21 February 1851 2) (rape of a white woman by an Aboriginal man) and the sentencing comments of Dowling CJ in R v Saunders, R v Hiefe and R v Manson [1841] NSWSupC 14 (Sydney Herald (Sydney), 16 February 1841, 2). See also Davis, above n 128, 29-32; Hughes, above n 32, 244-281. The rationale behind the view that sexual offenders should be the subject of stern prosecution and even execution was that in a society where women were so heavily outnumbered by men (Castles notes that in Tasmania in 1824 males outnumbered females by a factor of three to one and by 1847 this was still two to one, Castles, above n 47, 261) the colony’s women were endangered and had to be protected from the threat that any sexual offender posed to them, see Davis, above n 128, 29-32; Castles, above n 47, 261-62. Such a rationale behind the prosecution of at least sodomy or bestiality seems very tenuous. As Castles notes, ‘in the twentieth century it may be difficult to comprehend the logic in arguments like this’ (Ibid, 262).

^[271] [1824] TASSupC 26 (Hobart Town Gazette (Hobart), 3 December 1824, 3).

^[272] Hobart Town Gazette (Hobart), 3 December 1824, 3.

^[273] Ibid. See also the prosecutors’ robust approach in R v Bradney (Sydney Gazette (Sydney), 12 August 1824, 3) (a woman accused of murdering her husband by poison); R v Scott (Sydney Morning Herald (Sydney), 2 June 1857, 4-5) (at the trial of a woman for the alleged murder of her illegitimate newborn child emphasis on the ‘lamentable depravity’ of the crime and urging the jury to ‘take care that their verdict should not be such as would convince mothers of illegitimate children that their offspring were not like chattel property, to be disposed of and made away with as the parent thought proper’ (Ibid, 4)). The approach of prosecution counsel in cases like Bradney, Scott and Matthews can be contrasted with the ‘most feeling and pathetic manner’ with which counsel prosecuted the female defendant in R v Masters [1835] TASSupC 9 (Colonial Times (Hobart), 12 May 1835, 6-7) charged with the murder of her newborn child. See also R v Birchall (The Age (Melbourne), 24 July 1872, 3); R v Buckley (Sydney Morning Herald (Sydney), 9 December 1853, 4. It may be significant that the defendants in Masters, Birchall and Buckley were all charged with the murder of their infant children, a crime that even in the 1800s, the prosecutor’s approach in Scott notwithstanding, was regarded as unworthy of the full rigour of the criminal law. See the sympathetic report of R v McLauchlan [1830] TASSupC 14 in the Tasmanian & Austral-Asiatic Review, 23 April 1830, explaining why a mother might be driven to kill her newborn child and condemning the death sentence carried out in that case(see also Davis, n 129, 20 and 25). The alleged crimes of the female defendants in Bradney and Matthews could not be regarded in such a sympathetic light. Perhaps one crime was treated as conforming to acceptable notions of female criminality and one was not. See further Anne Summers, Damned Whores and God’s Police (Penguin, 1975).

^[274] Hobart Town Gazette (Hobart), 3 December 1824, 3. Though to no avail as the defendants were acquitted. See also R v Freeman (Colonial Times (Hobart), 5 March 1844, 4), where prosecution counsel adopted a strong moral tone at the trial of a black man for managing a disorderly house at which young girls had attended.

^[275] See the ‘minister of justice’ approach in the English cases cited above at nn 19, 22 and 27.

^[276] Charles White, History of Australian Bushrangers (Vol 1) (Lloyd O’Neill, 1970) 310.

^[277] Hobart Town Advertiser (Hobart), 8 September 1843. See also The Courier (Hobart), 8 September 1843, 2-3; Colonial Times (Hobart), 12 September 1843, 2-3. See also Martin Cash, The Bushranger of Van Diemen’s Land in 1843-4 (5^th ed) (J Walch & Sons, 1929).

^[278] ‘Domestic Intelligence’, Launceston Examiner (Launceston), 7 May 1842, 2.

^[279] Hobart Town Advertiser (Hobart), 8 September 1843. See also The Courier (Hobart), 8 September 1843, 2; Colonial Times (Hobart), 12 September 1843, 2.

^[280] Colonial Times (Hobart), 25 January 1842, 3.

^[281] Ibid.

^[282] See, for example, R v Parrott (Colonial Times (Hobart), 7 September 1841, 3) (theft from employer); R v Mallaly & Meek (Launceston Examiner (Launceston), 11 January 1845, 2-4) (murder); R v Vidall (The Australian (Sydney), 11 January 1845, 2; Sydney Morning Herald (Sydney), 13 January 1845, 2) (alleged murder by a Frenchman); R v Murphy (Sydney Morning Herald (Sydney), 10 April 1845, 2) (assault within to inflict grievous bodily harm); R v Eliza Benwell (Colonial Times (Hobart), 9 September 1845, 3; 12 September 1845, 3) (female convict accused of assisting her male convict accomplices to murder the maid of a ‘respectable’ couple); R v Kenney (The Courier (Hobart), 6 March 1847, 2-3) (brutal burglary and attempted murder); R v Bryan (Maitland Mercury, 20 September 1848, 4) (murder where the accused was legally unrepresented); R v Day & Campbell (Colonial Times (Hobart), 17 May 1850, 4) (assault with intent to injure health); R v Robertson (Sydney Morning Herald (Sydney), 9 April 1852, 2) (murder where insanity raised); R v Sim Lac (Sydney Morning Herald (Sydney), 6 April 1853, 2) (Chinese man charged with an ‘unnatural offence’ upon a white boy).

^[283] See the reports of the trial in Sydney Morning Herald (Sydney), 25 January 1844, 2-3; Sydney Morning Chronicle (Sydney), 27 January 1844, 3; The Australian (Sydney), 25 January 1844, 3. See further Colin Roderick, John Knatchbull: From Quarterdeck to Gallows (Angus and Robertson, 1963).

^[284] Knatchbull was the son of a Baronet and had served as a naval officer in the Napoleonic Wars.

^[285] Editorial, ‘Shocking Attempt at Murder,’ Colonial Times (Hobart), 6 February 1844, 3.

^[286] Therry, above n 52, 100. Knatchbull had committed further crimes in the colony that had led him to being transported to Norfolk Island. See further the hostile description of him in Ibid, 100-103.

^[287] Editorial, above n 285, 3. Knatchbull had been implicated not only in a plot to poison the crew of the ship taking him to Norfolk Island but also in a planned mutiny at Norfolk Island in early 1834 (this was the mutiny that gave rise to R v Douglas & Others [1834] NSWSupC 81 (see further above n 193) when he acted as an informer and provided a deposition to the island’s Commandant.

^[288] Knatchbull, much to the regret of Burton J (the trial judge in Douglas) was not charged for his role in the mutiny, see Therry, above n 52, 101. It is unsurprising that the Colonial Times in 1844 speculated that ‘but for the powerful interests of his English relatives...he [Knatchbull] would have been hung in chains years ago’ (Editorial, above n 285, 3).

^[289] Woods, n 161, 159-160.

^[290] Sydney Morning Herald (Sydney), 25 January 1844, 2.

^[291] Ibid.

^[292] Sydney Morning Chronicle (Sydney), 27 January 1844, 3. Notwithstanding a spirited defence of insanity based on ‘irresistible impulse’, Knatchbull was convicted by the jury who did not even trouble to leave their box.

^[293] The prosecution of a ‘toff’, as Hay asserts, served an important purpose in the British criminal justice system, see Hay, above n 16, 33-34 and 39. It served to illustrate, if only in theory, that there was genuine equality before the law and ‘the impression made by the execution of a man of property or position was very deep.’ If an ostensibly respectable defendant such as Lord Ferrers (an English aristocrat who, wearing his silver brocade wedding-suit, was hanged and dissected for the murder of his steward) or Knatchbull could be prosecuted and hanged in a ‘society radically divided between the rich and the poor, the powerful and the powerless’ then the rhetoric of the law was not hollow. See Ibid, 19. For a colonial example, see R v Ross (Colonial Times (Hobart), 15 March 1842, 2).

^[294] Colonial Times (Hobart), 7 February 1857, 2-3; Hobart Mercury (Maitland), 6 February 1857, 2-3; 9 February 1857, 3. See also Davis, above n 128, 60-61.

^[295] Flemming CJ noted that Nixon had been transported to Tasmania for manslaughter in 1841 and had then been guilty in the colony of a ‘continued series of offences’ including of an ‘unnatural’ nature, see Colonial Times (Hobart), 7 February 1857, 3.

^[296] Defence counsel noted that the accused had been at high risk of being ‘literally torn piece to piece’ prior to any trial, see Colonial Times (Hobart), 7 February 1857, 3; Hobart Mercury (Hobart), 9 February 1857, 3.

^[297] It also attracted the praise of the Press, see ‘Nixon’s Trial’, Hobart Mercury (Hobart), 9 February 1857, 2.

^[298] Ibid.

^[299] Ibid.

^[300] Ibid. This is a reference to the vigilante style justice and ‘kangaroo courts’ of California after the 1849 Gold Rush.

^[301] See the similar conspicuous restraint employed by the Attorney-General in the similarly highly charged trial of a man accused of murdering two young children in R v Griffiths (Hobart Mercury (Hobart), 25 October 1865, 3; 26 October 1865, 2-3). See also Davis, above n 128, 65.

^[302] See The Age (Melbourne), 6 April 1868, 6; The Mercury (Hobart), 7 April, 1868, 3, for a report of the trial.

^[303] See The Age (Melbourne), 14 March 1868, 4-6; Woods, n 162, 242-243. Ironically, O’Farrell himself did nothing to dispel these accounts and even claimed that he was part of a wider plot, see The Age (Melbourne), 17 March 1868, 4; the report of the committal hearing, The Age (Melbourne), 23 March 1868, 6. Despite fears of a wider Irish Fenian plot it appears clear that O’Farrell was mentally disordered and acted alone, see The Age (Melbourne), 16 March 1868, 6; Keith Amos, The Fenians in Australia: 1865-1880 (NSW University Press, 1988) 76; Woods, n 162, 240-243; Alan Martin, Henry Parkes: A Biography (Melbourne University Press, 1980) 236-238. However, fear that O’Farrell was part of a wider Fenian plot was exploited by local politicians, notably Henry Parkes, the Colonial Secretary, for political advantage, see Amos, above n 303, 56-71; Woods, above n 162, 242-3.

^[304] The Age (Melbourne), 1 April 1868, 5.

^[305] See Robert Travers, The Phantom Fenians of New South Wales (Kangaroo Press, 1986) 86.

^[306] Martin, above n 305, 238.

^[307] The Age (Melbourne), 6 April 1868, 6.

^[308] See Travers, above n 305, 79 and 85-86. However, the prosecution, or at least the Colonial Secretary, Henry Parkes, can be strongly criticised for their concealment, from both the defence and the jury, of the contents, and even the existence, of O’Farrell’s personal journal that was so bizarre and irrational that it was clearly relevant and beneficial to the defence of insanity, see Ibid, 44 and 139-141; Woods, n 162, 240-243. This action was at odds with any notion of the prosecutor’s role as a minister of justice but it was not until such modern decisions as R v Ward [1993] 1 WLR 619 and R v Mallard [2005] HCA 68; (2005) 224 CLR 125 that the minister of justice role was to find practical expression in the prosecution’s wide duty of disclosure to the defence of such significant unused material in its possession such as the journal. See generally David Plater, ‘The Development of the Prosecutor’s Role in England and Australia with Respect to Disclosure: Partisan Advocate or Minister of Justice?’ [2006] UTasLawRw 9; (2006) 25 University of Tasmania Law Review 111.

^[309] Maitland Mercury (Maitland), 24 April 1869, 4.

^[310] It is unclear if the Attorney-General was referring to the past prosecutorial practice in England of the State Trials (see above n 7) or the earlier apparent Australian practice described in Parts 5-8 above.

^[311] Maitland Mercury (Maitland), 24 April 1869, 4.

^[312] See, for example, R v Birkman (Moreton Bay Courier (Moreton Bay), 13 January 1858, 2-3) (prosecutor praised by defence counsel for his fair and candid conduct of the trial of a man for the murder of his wife); R v Beckett (Mercury, 29 January 1859, 3) (alleged murder by a mother of her newborn child); R v Thomas and John Clark (Sydney Morning Herald (Sydney), 29 May 1867, 2-3) (restrained prosecution of two leading bushrangers); R v Croker (Maitland Mercury (Maitland), 26 October 1872, 6) (Attorney-General praised by both defence and trial judge for ‘very fairly’ presenting the prosecution case at a murder trial); R v Birchall, (The Age (Melbourne), 24 July 1873, 4) (alleged murder of a newborn child by the mother); R v Peters (Mercury, 1 December 1875, 2-3; 2 December 1875, 3) (prosecution counsel during a trial for fraudulent trading acted with notable restraint despite unjustified strong and personal attacks upon him by defence counsel); R v Deeming in 1892 (see John O’Sullivan, A Most Unique Ruffian: The Trial of FB Deeming, Melbourne, 1892 (FW Cheshire, 1968) 93) (prosecution counsel opened the trial of a notorious murderer ‘briefly and without any note of passion’).

^[313] Sydney Morning Herald (Sydney), 23 November 1900, 7; 24 November 1900, 11. See also the reports of the trial in The Age (Melbourne), 23 and 24 November 1900.

^[314] ‘The Breelong Outlaws’, Advertiser, 1 November 1900, 4.

^[315] This case inspired the well-known film, The Chant of Jimmy Blacksmith.

^[316] ‘The Breelong Blacks’, Launceston Examiner (Launceston), 5 November 1900, 4.

^[317] Advertiser, 1 November 1900, 4.

^[318] Ibid.

^[319] The brother was shot and killed during Governor’s arrest.

^[320] Governor admitted his many crimes to both to the police and, especially, the Press. See ‘The Breelong Blacks: Interview with Jimmy Governor – Tired of the Chase’, Maitland Daily, 29 October 1900, 3.

^[321] It is unclear why this was so.

^[322] See the closing address of defence counsel, reported in The Age (Melbourne), 24 November 1900; Sydney Morning Herald (Sydney), 24 November 1900, 11; who complained of the intense and hostile publicity surrounding the case.

^[323] See Sydney Morning Herald (Sydney), 23 November 1900, 7. See the similar solicitude for the accused displayed by prosecution counsel in 1914 in the Tasmanian case of R v Belbin (Mercury, 14 February 1917, 7; 16 February 1914, 2; 17 February 1914, 2). See also Davis, above n 128, 84-88.

^[324] The Age (Melbourne), 23 November 1900. See also Sydney Morning Herald (Sydney), 23 November 1900, 7.

^[325] Ibid. Governor raised a partial defence of provocation to the first murder. His counsel accepted that though Governor may have had no defence to the subsequent murders, he had a valid claim of provocation to the first killing. This claim seems tenable but it was rejected by the jury and Governor was hanged.

^[326] See, for example, Landsman, above n 8.

^[327] See further Neal, above n 34; Hirst (1988), above n 169, 196; Paul Finn, Law and Government in Colonial Australia (Oxford University Press, 1987).

^[328] Therry, above n 52, 59-66.

^[329] Alan Shaw, The Story of Australia (Faber & Faber, 1960) 104.

^[330] Neal, above n 34, 197.

^[331] Serle (1963), above n 217, 369-381.

^[332] Ibid, 379. See also Therry, above n 52, 407.

^[333] Hughes, above n 32, 589-594. See further Boyce, above n 167.

^[334] Davis attributes these continued fears to an over-reaction to the arrival of convicts from Norfolk Island, see Davis, above n 128, 58.

^[335] Robson, above n 166, 521.

^[336] Ibid, 521 and 528-529. See further Ibid, 483-512 (transportation); 513-534 (self-government). Though Robson does note that the ‘wild and bloody’ (Ibid, 521) Tasmania of old still lingered. On the day that news reached London in 1855 of the renaming of Tasmania, four convicts were publicly hanged in Hobart (Ibid, 521-522). See also Boyce, above n 167, 236-243.

^[337] Davis, above n 128, 58-67.

^[338] Ibid 71.

^[339] See further Neal, above n 34.

^[340] Rogers, above n 124, 259-260.

^[341] See the cases cited above at n 23 and n 26.

^[342] See R v Berens [1865] EngR 42; (1865) 4 F & F 842; R v Puddick (1865) 4 F & F 482, 497, R v Banks [1916] 2 KB 621; R v Sugarman (1935) 25 Cr App R 109.

^[343] See the discussion in Part 1 above.

^[344] The High Court considered that it was bound by decisions of the House of Lords until 1963 (see R v Parker [1963] HCA 13; (1963) 37 ALJR 1) and of the Privy Council until 1978 (see R v Viro (1978) 141 CLR 85).

^[345] Kercher (1995), above n 52, 93. See also Trimble v Hill (1879) 5 AC 342, 345 where the Privy Council declared that it was ‘of the utmost importance that in all parts of the Empire where English law prevails, the interpretation of that law by the Courts should be as nearly as possible the same.’ See further Kercher (1995) above n 52, 166-167.

^[346] ‘Convict Discipline’, Sydney Monitor (Sydney), 11 March 1835, 2.

^[347] See May, above n 8, 200; Bentley, above n 9, 297-301. These reforms included a comprehensive right of appeal, public funding for criminal representation and the right of the defendant to testify as a witness in his or her defence.

^[348] [1946] NSWStRp 21; (1946) 46 SR (NSW) 281.

^[349] This material was the reference at length by prosecution counsel in his opening address to an inadmissible confession and seeking to introduce the accused’s bad character when the issue of character had not been raised in the cross-examination of the accused.

^[350] R v Puddick (1865) 4 F & F 482.

^[351] [1946] NSWStRp 21; (1946) 46 SR (NSW) 281, 284-85.

^[352] See, for example, Mohammed v State [1998] UKPC 49; [1999] 2 WLR 552, 564; R v Randall [2002] UKPC 19; [2002] 1 WLR 2237, 2241-2242.

^[353] See, for example, R v Hay and Lindsay [1968] Qd R 459, 474-475 and 476-477; R v McCullough [1982] TASRp 7; [1982] Tas R 43, 56-57; R v Libke [2007] HCA 30; (2007) 81 ALJR 1309.

^[354] See, for example, R v Livermore [2006] NSWCCA 334; (2006) 67 NSWLR 659; R v MG [2007] NSWCCA 57; (2007) 69 NSWLR 20.

^[355] When one examines the facts of modern cases such as R v Livermore [2006] NSWCCA 334; (2006) 67 NSWLR 659 and R v MG [2007] NSWCCA 57; (2007) 69 NSWLR 20, it is arguable that the courts took the minister of justice concept to inappropriate lengths that are far removed from the type of situation that prompted the development of the prosecutorial role as a minister of justice in England in the early 1800s. See above n 10.

^[356] See, for example, Shapray, above n 29, 135; Grossman, above n 29, 348-349.

^[357] See Counsel, Trinity 1986, quoted in Peter Murphy (ed), Blackstone’s Criminal Practice 2005 (Oxford University Press, 2005) 1485.