Supreme Court 1824 – 1828

May 1824 was a significant month in the evolution of the administration of justice in Van Diemen’s Land. After 20 years of being a dependency of the colony of New South Wales, the first step towards independence was about to happen with the opening of a Supreme Court in Hobart that could hear both civil and criminal matters.

Hibernia – ship that brought passengers and convicts to Van Diemen’s Land

John Lewis Pedder had been appointed Chief Justice of the new Supreme Court on 18 August 1823. He arrived in Hobart on board the Hibernia, with his wife Maria, on 15 March 1824. Also on board was the new Attorney General, Joseph Tice Gellibrand. When the ship was first sighted, there was much excitement as it was though the new Lieutenant Governor, Colonel George Arthur, was aboard but shipping difficulties were to delay his arrival until mid-May. When the Pedders disembarked the following day, they were greeted with a 13-gun salute fired from the Mulgrave Battery. It was not the most impressive fortification to protect the citizens of Hobart; in fact it was described by a colonist as a “pitiful mud fort with half a dozen honeycombed guns perfectly harmless to the artillery men who fire them and serving only to make a noise on the King’s birthday and on one or two other public occasions“. Clearly the new Chief was deemed worthy of this recognition. When the noise had subsided he then made the trip to Government House to present his credentials to Lieutenant Governor Sorrel, which included all the necessary authority to open the new court, including the Royal Charter of Justice.

Mulgrave Battery with accompanying Signal Station

The Royal Charter of Justice was read in the marketplace in Hobart Town on 7 May 1824. Three days later, the Charter was read out at the first sitting of the new court, and the oath of office was administered to Attorney-General, Joseph Gellibrand and to William Sorell, first Registrar of the Supreme Court. In his opening address, Chief Justice John Pedder acknowledged some of the problems that had beset the administration of criminal justice in Van Diemen’s Land, and hoped these would now be overcome. At this time, he would have been unaware of the problems that were to confront him in his first few years on the bench.

The first defendant to be tried before the new Supreme Court was William Tibbs, who had arrived in the colony just a few months previously. He was charged with having shot and killed a ‘black man’ named John Jackson on 17 January 1824. An account of the trial R v Tibbs also includes an address by the Attorney General to the Court. The trial has often been referred to the first in any Australian Supreme Court where a white man was convicted of the manslaughter of an Aboriginal. However recent research identifies the ‘black man’ shot by William Tibbs in 1824 as an American man of colour. See Chapter 7 of Constructing a Colonial Chief Justice: John Lewis Pedder in Van Diemen’s Land, 1824-1854 for details of how the identity of John Jackson was established.

In 1826 a case involving two aboriginal defendants on trial for murder (R v Jack and Dick) raised questions about the imposition of English law, particularly capital punishment, on aboriginals. However, it made no difference to the outcome – the imposition of the death penalty.

There are no official Law Reports for any of the cases that were heard in the Van Diemen’s Land Supreme Court. However, newspaper reports for the years 1824-1843 are available at Decisions of the nineteenth Century Tasmanian Superior Courts. There are 28 Reports for 1824,  18 in 1825, 19 in 1826, 14 in 1827 and only three in 1828. The Hobart Town Courier, 2 February 1828, noted that few civil matters now reached the Supreme Court by comparison with a few years earlier, with arbitration often being used as it was less expensive. Criminal cases were very briefly reported in some newspapers: Colonial Advocate, 1 April 1828; Hobart Town Courier, 19 July 1828; and particularly the Tasmanian, which often published very short reports of criminal cases. In most instances, these criminal reports merely state the name of the defendant, the charge and the verdict. In 1828, neither the Hobart Town Gazette nor the Colonial Times published any law reports.

Sketch of face of Alexander Pearce after his death

Alexander Pearce was the first confessed cannibal to be sentenced for murder in the new Supreme Court. On 21 June 1824 he was found guilty of murder and hanged on 19 July, with the Chief Justice ordering that his body be handed over to surgeons for dissection. R. v. Pearce [1824] details his criminal history in Van Diemen’s Land, his trial and sentence.

His skull was later sold to an American phrenologist, Dr Samuel George Morton and is now on display in the University of Pennsylvania’s Museum.

The cases of R. v. McCabe [1825] and R v Jeffries and Others [1826] highlight the dangers that gangs of bushrangers posed to the community, and the sentences imposed by the Supreme Court when they were captured and put on trial. R. v. Farquharson and Webster [1826] is notable for the number of executions recorded on one day when his Honour the Chief Justice Pedder came into Court at 11 o’Clock on 2 September for the melancholy purpose of passing sentence on the prisoners who have been convicted at the last Sessions.

Convicts who had escaped from the Macquarie Penal Settlement on the west coast often received a death sentence. For some this was preferable to being returned to Sarah Island in Macquarie Harbour, which had the reputation of being one of the harshest penal settlements in the Australian colonies. At times convicts who were sentenced to be returned would plead to have their sentences changed to the death penalty – see R v. James, Pennel and McGuire [1828]. The Prosecution Project’s report on the Hanging Years shows the number of executions in Van Diemen’s Land peaking at over 50 a year around 1824.

Thomas Lempriere’s sketch of Macquarie Harbour, 1830 (AOT, PH30/1/376)

Pedder had to deal with two important issues during his first few years in office. The first question involved juries: the Act empowering the establishment of the Supreme Courts in New South Wales and Van Diemen’s Land (4 Geo IV c 96) provided for actions at law to be tried by a jury of twelve men if both parties in an application to the presiding judge for such jury. Judicial interpretation in the two colonies differed, with Sir Francis Forbes in R v The Magistrates of Sydney [1824] NSWSupC 20 ruling that free men should be tried by juries of their fellows, but limiting it to Courts of Quarter Sessions. In contrast Pedder’s decision in R v Magistrates of Hobart Town [1825] held that trial by jury could only apply in the Supreme Court. Alex Castles in his article, The Judiciary and Political Questions: The First Australian Experience considers these conflicting opinions in detail.

The second issue related to freedom of the press. This was a topic hotly debated in New South Wales and Van Diemen’s Land. The main combatants in Van Diemen’s Land were Lieutenant Governor George Arthur and emancipist Andrew Bent. The Timeline of Andrew Bent’s Life states that 4 June 1824 was the day “Bent’s Hobart Town Gazette threw off the shackles of official censorship … by sacking the government-appointed editor” Henry Emmett, and appointing his own editor, Evan Henry Thomas. The result was that proofs of the Gazette were no longer sent to the government for approval. While he was free to publish, he was still open to being prosecuted for libel.

From 1825-1828 Bent was prosecuted by the Crown on a regular basis, sometimes successfully but not always. The Timeline mentioned in the previous paragraph provides links to the cases involving Bent. Despite spending three months in gaol and being fined several hundred pounds sterling he still managed to keep publishing. In 1827 Arthur thought he had finally got the upper hand when the Legislative Council passed an Act imposing duties on Newspapers and Licences to Publish 8 Geo IV, No 3. By refusing to grant Bent a licence he effectively gagged him. While this ploy was initially successful, it was only a temporary victory as the Act was disallowed by the British government in 1828.

The passage of the 1827 Act through the Legislative Council highlights a dilemma for the Chief Justice at this stage of his career. Pedder was a member of the Legislative Council as well as being the only judge on the Supreme Court. Thus, he was a party to passing the legislation in the Council, which was then sent to the Supreme Court to be certified by the Chief Justice that it was not repugnant to the laws of England. When the Act was disallowed, it would have reflected on his ability to be truly independent in his role as Chief Justice.

Unlike his counterpart in Sydney, Sir Francis Forbes, Pedder had no previous experience as a judge. This probably contributed to his reputation for vacillation as he agonised over minute details about points of law and court procedure. Squabbling legal officers did not help either as demonstrated by In re Gellibrand [1825].

By 1828 Pedder must have been looking forward to new UK legislation that would confirm the appointment of a second judge for the VDL Supreme Court. As well as being Chief Justice, he was also a member of both the Legislative Council and the Executive Council, making for a very heavy workload. If he had expectations of a swift outcome then he was to be disappointed, with a second judge not taking his place on the bench until 1833. The next post will focus on the period from 25 July 1828 (often referred to as Reception Day because all English law on that day would automatically apply to Van Diemen’s Land) to 3 February 1833 (Algernon Montagu becomes second judge).

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About dashea2014

A Law Librarian with extensive experience in general legal and court libraries. Editor of the Australian Law Librarian for 4.5 years (2008-2012) and active member of Law Libraries Tasmania. Special topics - Tasmanian legislation and case law. A passion for maintaining access to print resources.
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