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Decisions of the Superior Courts of New South Wales, 1788-1899

Featured cases

R. v. Magistrates of Sydney, 1824

Alex Castles described this as "the first major constitutional case in Australian history."[1]  It was also one of the earliest decisions by the new Chief Justice, Francis Forbes, in which he engaged in the colony's most controversial political disputes.  The question was whether the colony's middle level criminal courts, the Courts of Quarter Sessions, were to sit with a civilian jury.  Since 1788, the superior criminal courts, at this time the new Supreme Court of New South Wales, had sat with only a military jury.  Was the silence on this point so far as the Quarter Sessions were concerned, to be read as indorsement of civilian juries, or as their denial?  This case was part of a struggle for liberal political institutions, and particularly, part of the heated debate between emancipists, former convicts, and the exclusives, those who had never been tainted by criminality.  Were formerly attainted convicts to be entitled to full restoration of their status as subjects?  Was the colony merely an extended gaol, or did it deserve the full political and legal institutions of other colonies?

[1] A.C. Castles, An Australian Legal History, Law Book Co., Sydney, 1982, pp 185-186.


R. v. Johnston, Clarke, Nicholson, Castles, and Crear, 1824

Two or three times a year in the 1820s and 1830s, the Supreme Court of New South Wales was faced with the legal consequences of frontier violence between Europeans and Aborigines.  In R. v. Foley, 1824, an Aborigine was acquitted of murdering a white man, and in this case, five whites were charged with the manslaughter of an Aboriginal woman.  The background to this case was a series of clashes in the Bathurst area.  When seven white men were killed by Aborigines in the Mudgee district, the prisoners armed themselves and took off in pursuit of those they thought guilty.  Three black women were found dead, including an old woman who was at the centre of this charge.


Ward v. Karnes, 1824

The tort of seduction has been abolished in Australia, but once appeared in court occasionally to amuse onlookers, if not participants.  It was usually reported in greater detail than other civil actions.  In this case, a father sued for the loss of his daughter's services.  Little was said against her character, but the father of the seduced young woman was subject to vigorous attack.  The charge to the jury by Forbes C.J. is notable for its attention to the principles of assessment of damages.


R. v. Gillman, 1824

This was the first civil liberties action heard by Forbes C.J., and the first of many cases in which W.C. Wentworth acted against what he saw as oppressive actions by the government and magistracy.  It concerned the legal limits on the activities of the military commander at Newcastle, which was in the process of being opened up to civilian settlement after its initial role as a penal establishment.  In these circumstances, what were the appropriate limits on the military commander when acting as a civilian magistrate?


R. v. Fitzpatrick and Colville, 1824

What happened when the only witness to a brutal murder was unable to give evidence in court?  In English law, attainted convicts and Aborigines were both unable to give evidence.  Aborigines were in this position because they did not hold the European belief in a God who rewards and punishes people after death.  In this case, one European admitted killing another, but claimed it was an accident.  The eyewitness was Bulwaddy, an Aborigine.  Chief Justice Forbes refused to admit the evidence of Bulwaddy, but the military jury found the defendant guilty in any event.  Forbes sentenced the prisoner to death, but sent the case to the governor for his consideration of Royal mercy as the formal evidence against him was so weak.  The governor interviewed Bulwaddy, and convinced of the honesty of his testimony, announced that the prisoner was to hang.  Forbes said that the rule against testimony by native people was barbarous.  It is clear that he was pleased by the outcome.  What, then, was the law on the admission of Aboriginal evidence?  In strict law the answer was simply that applied by Forbes at the trial, but it may have been hard to convince the prisoner of that as he stood on the scaffold, awaiting execution.

Nash v. Purcell, 1828

In this case the Supreme Court had to consider the constitutional status of Acts of the Legislative Council.  Could the court go behind the legislation to test its validity, or was it required to give judicial notice to it?  Behind this was the issue of judicial review of legislation, the question which so exercised the Supreme Court of the United States in these years.  Judicial review was necessarily part of the law of all colonies whose legislatures were required to conform to the laws of England, and this often brought the Forbes court into conflict with powerful political figures, including the governors.

R. v. Ballard or Barrett, 1829

This is one of the most important decisions of the Supreme Court under Forbes C.J.  The court had to consider whether it had jurisdiction when one Aborigine allegedly killed another.  It raises questions concerning the legal status of Aborigines, and the recognition of their legal practices, and touches on the recognition of their property rights.  For other cases concerning Aborigines, see the Subject Index.

R v. Jenkins and Tattersdale, 1834

Some of these cases tell great stories.  This is the rip-roaring tale of the murder of Dr Wardell, one of the founders of the NSW bar.  The lives of the young bushrangers are told in detail, culminating in one of the wildest outcomes of a trial in the history of law in Australia.  For a convict's view of  Wardell, see also Tour to Hell.

R v Murrell and Bummaree, 1836

This is one of the most important decisions in Australian law.  Did the Supreme Court have jurisdiction to hold a murder trial in which both the alleged victim and the defendant were Aborigines?  It also raises the issues of terra nullius, and whether Aborigines were British subjects from 1788 onwards.  This is a more complete version of the judgment than that published in the Law Reports, and includes extensive commentary.


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Published by the Division of Law, Macquarie University