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A History of Criminal Law in New South Wales

A History of Criminal Law in New South Wales

The colonial period, 1788-1900

By G D Woods

CONTENTSREVIEWS

New South Wales is that rare political creation, a state founded for and upon the criminal law. The history of its criminal law from settlement to Federation is uniquely fascinating. Drawing on his range of experience as a university scholar, a criminal law QC and a judge, the author explains how Britain's criminal laws were established and developed in its (arguably) most successful colony. There are three themes:

  • the horror and savagery of the criminal law transported to Australia and imposed there;
  • the constitutional importance of basic criminal law rules requiring certainty of proof;
  • the corrupt but necessary role of mercy in the administration of the law.

There are several genuinely remarkable features of this book. One is that the author draws upon a vast body of material recently brought to light by Bruce Kercher in his massive disinterment of early colonial case law, to explain in detail the actual working of the New South Wales criminal courts.

Another is that the core of the book is an analysis of New South Wales parliamentary debates between 1871 and 1883 on criminal law, illuminating the history of the law (and its future). Yet the most remarkable thing of all about this book is its rarity. In the many places where the British Empire imposed its laws, there are hundreds of universities and centres of legal study.

Histories of the criminal law, or studies which can be so described, are rare or invisible. This admirable study will become a classic in its field, required reading by legal scholars, historians of colony and empire, and by astute legal practitioners making arguments for contemporary submissions or judgments.


CONTENTS

Foreword by Justice Mary Gaudron, High Court of Australia
Acknowledgments/ Preface/ Abbreviations/ Notes on Citations of Statutes; Geography; and Conversions

Savagery, principle and mercy in the criminal law
Imposition and inheritance: The transportation of English criminal law to New South Wales
Criminal law in a penal settlement
Criminal law and Governor Macquarie: Right and wrong, cheek by jowl
Crimes of the pen; and an experiment
Struggling from chains: Juries, the lash and natives
Making trials work: The other William Blackstone
English reforms adopted: Retreat of the death penalty
The colony legislates on crime
The insanity defence: McNaghten and Knatchbull
The end of transportation, 1849
Sir John Jervis: Lower court reforms of 1850
The Gold Rushes: Temporary problems for criminal law
Outlaws and urchins
"A most irregular traffic": Slaving cases in New South Wales courts
The Mad Fenian: Criminal process under pressure
The first Law Reform Commission and its 1871 Report
Edward Butler and the Reform Bill: "Untoward circumstances"
J G L Innes and the Reform Bill: A second failure
W B Dalley and the Reform Bill: Yet another failure
The larrikin residuum, 1881
The 1882 debate: "Serving their term"
The Great Bill passes: 1883
The light that failed: Mandatory sentencing repealed
Enter, the accused
The accused as witness: The "comment" issue
Doctor Malthus and the baby farmers
George Dean and friends
Tidying up in 1900
Epilogue

Bibliography/ Index of Cases/ Index of Statutes/ Index of Subjects/ Index of Names


REVIEWS

This present history is the product of scholarship of the highest order and of extensive original research. It is replete with erudition and is a delight to read. It is a work from which even the most learned historian will acquire new knowledge, whilst for the general reader every page is a source of constant enlightenment and satisfaction.
In fascinating detail, the author … traces three inter-connecting themes which have been basic to the administration of … criminal justice in New South Wales: early savagery; the inheritance, adoption or development of important legal principles; and mercy. For the general reader, the first and third of these themes will attract the greatest attention, whilst for the historian and the lawyer it is the second which offers the greatest benefit and information. …
Not least among the benefits of this book are the extremely informative and often entertaining character sketches of many of the … members of the legal profession and the colonial legislature in an era when the law was practised and politics conducted in New South Wales with an often unrestrained vigour and robustness …

Descent (Aust. Genealogical Society), Vol 34 No 2, June 2004

The bulk of the book is about the working out and application of legal principles, frequently enlivened with detail from leading cases and, in the latter parts of the book, extensive parliamentary debates over the amendment of the criminal law. … [The author's] accounts make important reading – Woods on the fate of mandatory sentencing provisions in late 19th century New South Wales is a cautionary tale for aspirant populist legislators in 21st century Australia. …
Woods’ subject is equally a narrative of the circumstances of the times. Cases rather than patterns of behaviour are his central concern. He is mindful, however, of the symbolic functions of the law and law-making, including those moments of legislators’ panic when the parliament is used as much to send messages to the constituents as to effect a change in the circumstances of society. When the law-makers legislated to revive flogging to deal with the larrikin menace in 1883, did they really imagine that it would turn out to be anything other than a dead letter (342-5)? Woods has a sharp eye for such detail and his history is as much a part of the political history of the colony as of its legal institutions. …
Historians will find illuminating the perspective of a lawyer on the technicalities of trials and other aspects of criminal procedure, particularly as these were modified in Australian conditions. … A History of Criminal Law in New South Wales will become a standard reference …

Australian Historical Studies, Vol 122, 2003

…provides a fascinating insight into the early times of New South Wales. …This book has taken me several nights to read because it is, to put it simply, compelling reading to anyone who loves the history of the law and wishes to gain a greater understanding of its development.

Tasmanian Law Society Newsletter, November 2003

This is a wide-ranging volume and the personalities who filter through its pages are an eclectic lot, ranging from Bligh and Macarthur and their ilk, through to the early judges Stephen and Forbes, right up to the criminal baby farmers, the Makins, and their backyard which became a graveyard for the infants they murdered. ... This is an interesting and readable work and well worth pursuing.

Law Institute Journal Victoria, July 2003

It is heartening to see a major undertaking well-executed. … The author tracks the influence of British law on the colony (to 1900). The focus on criminal law is necessary to keep the topic both accessible to the general reader and within readable bounds for specialists. Having said that it is a fully comprehensive, if not definitive, work on the subject, covering all major developments. The author keeps his eye firmly on the thesis of the book … and rewards his reader because of it.

Journal of the Royal Australian Historical Society, Vol 89 Part 1, June 2003

This is a very impressive piece of original research. It is scholarly yet informed by Dr Woods’ legal practice as a barrister and judge. All Australian lawyers who are interested in the development of their profession should read this book. …
The author … has a great knowledge of relevant laws and of reported case decisions in NSW. He is also very familiar with relevant parliamentary debates and the divergent opinions of contemporary lawyers, judges and politicians. Yet to a professional historian, … [his] awareness of the economic and social context of criminal law appears limited. Considerations of justice and punishment cannot really be so divorced from total reality. …
It would be fair to criticise a historian in such terms. Woods’ brief is not so all-embracing and no general historian would be competent to cover the legal ground adequately. He is to be congratulated on a great book – one of lasting value.

Civil Liberty, June 2003

Woods uses notable cases and characters to illustrate the influences that shaped the laws and the system that imposed them. ... The brutality of the convict era with mass executions in front of the Old Sydney Gaol in George St is a chilling reminder of the not-so-distant past. So too is the discussion of 'baby farming', the horrendous practice of "concealed infanticide where desperate parents allowed … 'child carers' to dispose of unwanted children. ... The book does much to explain the challenges faced by lawmakers and law enforcers. Woods' extensive use of footnotes and extracts from newspapers of the day provides an accessible text to those afraid of 'legalese'.

Newcastle Herald, 19 April 2003

   

Published November 2002
Publisher The Federation Press
Hardback/480pp
ISBN 9781862874398
Australian RRP $69.50
International Price $63.00
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Australian History / Studies
Law - Legal History
Law - Criminal Law & Procedure
History
Criminology & Policing - Criminal Justice History
Secondary School Resources

Institute of Criminology, Sydney, Monograph Series


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