This site contains decisions from of the Supreme Court of New South Wales handed down prior to 1900. All decisions in this site have been selected and edited by Bruce Kercher,  Division of Law, Macquarie University. The site is under construction and new decisions will be added in due course.

At present, there are two ways to find this material. The Case Index is divided into year blocks, beginning with 1824. There are also two  cumulative Subject Indices, one for the period in office of Forbes C.J. and the other for Dowling C.J.  The Forbes subject index is divided into four, in order to speed up the loading time.  It was getting so large that we began again when we commenced to download the cases decided under Dowling C.J.  We also have a separate page on later Aboriginal cases, and another on important judgments.

In the longer term, the present plans are for a  database of all cases for which records survive, whether or not they are extracted in this collection.

The Introduction to the collection explains the background to the project, and the criteria used in selecting and editing cases.

This site is reproduced on Austlii.  The cases appear here first, so this location is sometimes ahead of that at Austlii.  To make a full text search of the site, use the Austlii search facility: this location allows a search of every word of the site, such as family names and obscure legal terms.

The site is also on the Butterworths web site, which also has an excellent search facility allowing full text searches for names and legal terms.

CURRENT ACTIVITIES

We have now completed and published  cases for the whole period when Sir Francis Forbes was Chief Justice of New South Wales, that is, from 1824 to April 1836.  We have also completed cases decided in 1836, 1837 and 1838 under Dowling CJ.  Most importantly, in the light of the recent Corroboree, the 1838 cases  include the two Myall Creek massacre trials, R. v. Kilmeister (No. 1), 1838 and R. v. Kilmeister (No. 2), 1838.  These cases are now readily available for the first time.

We have stopped there for the time being, while we work on another, related project.

We have recently received funding for a pilot project on Van Diemen's Land case law from 1824 onwards.  This will allow serious comparative study of the decisions of the first two Supreme Courts in Australia. These cases will also be posted on the Division of Law website at Macquarie University. We will begin with the cases decided in 1824, which include two cases concerning duelling, the execution of two Aborigines, and the trial and execution of Alexander Pearce, the cannibal-convict who escaped from Macquarie Harbour.

LATER CASES CONCERNING ABORIGINES

We have decided to add cases concerning Aborigines that were decided by the Supreme Court of New South Wales after 1838.  This decision has been inspired by the increasing contemporary importance of these old, cases which are so difficult to find.  The first of these is R. v. Bonjon, 1841.  If any reader has any suggestions as to cases to add under this category, please contact us.

SPECIAL FEATURES

Francis Forbes  is the only New South Wales Chief Justice to have written  music, so far as we know.  His composition is known as  ``Up the Pond."

Some of the material produced  in these years, although not decisions of the courts, is so important that we have decided to include it.  Our first addition of this kind are the personal letters of Burton J.  The most significant part of this correspondence concerns his disappointment at not being appointed Chief Justice in place of Francis Forbes.

We have also included a poem called A Convict's Tour to Hell.  It is particularly relevant to the murder of Dr Wardell, which led to R. v. Jenkins and Tattersdale, 1834.

The Supreme Court's own version of its history is well worth reading.

JUDGMENTS

Most of our cases are records of the evidence presented in court, but some of them include important judgments.  Until now, these have  been difficult to obtain.  We have listed the cases that include significant judgments on a separate page, ranking them on a 20 point scale.  Eventually, we would like to publish these judgments as formal law reports.

FEATURED CASE

R. v. Kilmeister (No. 1), 1838

R. v. Kilmeister (No. 2), 1838

These are among the most famous trials in Australian history.  Contrary to the popular view, this was not the first time that white people were convicted of the murder of Aborigines.  Nor was it, on one view, the first time that a white person was hanged for that crime.  (For that dubious distinction, read the footnotes to R. v. Ridgway, Chip and Colthurst, 1826.)

The hanging of seven white men for the Myall Creek massacre of a large group of Aborigines caused a huge uproar in the colony.  The emotional response is still evident in the Australian community, as was shown in the recent unveiling of memorials to the victims.  Myall Creek should be central to any history of the relationship between the Aboriginal and British occupants of Australia, but it was anything but unique. For other cases concerning Aborigines, as both criminal defendants and victims, see the Subject Index.  It is important to see both the Forbes subject index and the Dowling subject index, as well as the page on later Aboriginal cases.

Other Featured  Cases

RESEARCH BASED ON THIS SITE

One of the main aims of this site is to promote research into early New South Wales law.  It is gratifying, then, to see that an increasing number of books, articles and papers refer to the cases reproduced here.  If you are working on these materials, and wish to have your work recorded, please contact us.

Copyright ©

 Much of this material is out of copyright. The Introduction, the commentary, headings and footnotes, however, are copyright. Readers are free to use this material for non-commercial purposes, so long as the source is acknowledged. The copyright material was written by Bruce Kercher; he is also responsible for the selection of documents for reproduction and for the creation of editorial policies.

All material herein is reproduced by permission where necessary, but does not purport to be the official or authorised version.