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Colonial Cases

R. v. Peter [1860]

Aboriginal defendant - Aborigines, legal status

Supreme Court of Victoria

In Banco, Stawell C.J., Barry and Molesworth JJ, 3 April 1860

Source: The Argus, 4 April 1860, p. 5

REGINA V. PETER.

This was also a special case, stated by a judge of the Supreme Court sitting in criminal jurisdiction. The case was that of the aboriginal native of Gipps Land, Peter, who was convicted of a capital offence at the last criminal sittings. Dr. Mackay had pleaded a plea to the jurisdiction, setting up that Peter is one of an aboriginal and sovereign tribe, which has its own laws and tribunals, under and to which alone he is amenable to justice. But when the case was now called on no counsel appeared for the prisoner.

The Chief Justice said the Court would consider the case.

At a later hour Dr. Mackay made a statement from which it appeared that he had not been present from a misunderstanding between himself and the officers of the Crown; and he asked leave to have the case reinstated in the list for argument. The Court, with some hesitation, gave leave to replace the case, but ordered it to be placed first in the list for next term.

In Banco, Stawell C.J., Barry and Molesworth JJ, 28 June 1860

Source: The Argus, 29 June 1860, p. 6

THE QUEEN V. PETER.

This was a special case, reserved on the trial and conviction of Peter, a black fellow, at the Criminal Sittings. The prisoner was a half-caste native; but on the argument it was assumed that he was a pure aboriginal of a still existing tribe, having a local residence apart from the white inhabitants of the colony. The point was, whether Peter was amenable to British laws or amenable only to the assumed laws or customs and tribunals of his tribe.

Dr. Mackay argued the case for the prisoner.

The Court did not call on the Solicitor-General for any reply; but held that the Queen's writ runs throughout this colony, and that British law is binding on all peoples within it; and that the conviction was good.

Judgement for the Crown.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School