Introduction:
‘Committed to trial’ was a step in the judicial process. A magistrate would decide on the severity of a charge and how it was to be progressed. For minor (summary) offences, a Magistrate sitting without a jury in a Magistrate’s Court (also referred to as a Police Court or Court of Petty Sessions) would hear the case against the defendant. For more serious offences, the magistrate would decide if there was enough evidence for a committal hearing before a judge and jury in a higher court.
Background:
When the British colonised Van Diemen’s Land, they brought with them a rudimentary lower court system to administer “rough justice” while relying on the New South Wales Supreme Court to deal with the more serious criminal offences. In 1825 however, the British government created two courts in Hobart: the Supreme Court which dealt with the colony’s more serious criminal offences and the Court of Quarter Sessions. Until 1830, the latter Court was only used to hear charges against convicts.
With the arrival of Lieutenant Governor Arthur in 1824, the lower court system was transformed; the colony was divided into districts administered by stipendiary magistrates with the assistance of convict Field Police. The magistrates dealt with both summary and committal matters. Summary offences were minor transgressions for which the magistrate could impose penalties. Committal hearings however, dealt with more serious offences which could only be tried before a judge and jury in a higher court; the magistrate could only commit a defendant to a jury trial if he found that the defendant had a case to answer.
Vexatious Charges:
Approximately 330 female convicts are recorded as being committed to trial in Van Diemen’s Land between 1803 and 1853, nearly two-thirds of them between 1830 to 1840. The trials during this decade saw many frivolous or vexatious charges coming before the magistrates and the courts.
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On 20th February 1832, Mary Higgins (per Hydery) was committed to trial for ‘Felony Stealing One pair of Cotton Stockings value 1/6’ from her master F. Luckman. The case was mentioned in the Hobart Town Courier: Mary Higgins, guilty of stealing a pair of stockings, was sentenced to 12 months in the female house of correction.[1]
Sarah Discoll, (per Mary) was charged in January 1833 with ‘Felony Stealing one shirt’ value [6 pence CON40] the property of R. Jamieson. She was committed for trial at the Quarter Sessions: Sarah Driscoll, charged with stealing a shirt, value 7s. the- property of her master, Mr. David Jamieson, of the River Plenty, was found guilty, and her original term of transportation was ordered to be extended for two years.[2]
On 21st April 1833, Mary Williams per Hydery, was charged with stealing a silk handkerchief to the value of 2/- and was committed to trial. Her original transportation sentence was extended with 3 years’ of hard labour.
Martha King per Midas, was serving a life sentence (death commuted) for Highway Robbery, when she was charged on 29th May 1834 with receiving a sheet, value 4/-, the property of Martha Page, knowing it to have been stolen. committed for trial at the Launceston Quarter Sessions on 2 June 1834, she was found guilty and sentenced to be transported for 7 years.
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Several steps were taken to deter complainants (masters, convict servants or police constables) from bringing nuisance or frivolous charges. These included fines and lashings. One problem faced by the judicial process was the employment of convicts or ex-convicts as police constables (field police), some of whom demonstrated bias in the laying of charges. Such charges could be retaliatory or based on pecuniary interest: a share of fine payments were passed on to informers, and the police constables were in an ideal situation to take advantage:
…one Moiety of every such Penalty or Penalties shall be payable to His EXCELLENCY the GOVERNOR of this Territory for the Time being, to be applied as His EXCELLENCY shall think proper, and the other Moiety thereof to the Informer or, Informers prosecuting for the same…[3]
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James Pickles and John Merrett, were dismissed from the police, and ordered to the roads, in acting improperly as constables, and making a false charge against a man they had apprehended. Tasmanian Weekly Dispatch, Friday 3 July 1840 - Page 7
James Pickles and John Merret were convicts who arrived on the Coromandel (2) in 1838. Pickles was serving a 15 year transportation sentence, and Merret was serving a life sentence, both for burglary. James Pickles, aged 23, was a gardener 5’11-3/4”, and John Merrett, aged 33, was a cloth dresser 5/7-1/2” tall. Apart from being above average height for the time, there was no indication why they were selected as police constables. The two men were still under penal servitude and had been charged with misconduct on several occasions. Whilst employed as a constable, Merrett had several misconduct charges brought against him, including trafficking with a prisoner in the watchhouse.
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In the 1830’s the calendars of the Quarter Sessions and Supreme Courts were filled with petty grievances or frivolous charges. In an attempt to prevent these charges from proceeding to court, the ‘Frivolous Suits Prevention Act’ was drafted in December 1840, although it would take another six months to pass into Legislation.[*] [4] (refer to Appendix 1.) The Act covered frivolous or malicious grievances, in particular trespassing charges, making provision for local adaptation.
The Chief Police Magistrate did not wait for the Act to pass through legislation, issuing a Memorandum in April 1841 outlining the procedures for preventing frivolous charges by his constables:
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POLICE. Since the issuing of the Chief Police Magistrate's mandate, of which the annexed is a copy, the information business has rapidly declined, not only in the wholesale, but in the retail way, as several of the latter dealers have been removed to country quarters, and there never were fewer complaints of disorder than during the preceding week. Memorandum," which is as follows:— Police Department, Hobart, 5th April, 1841. MEMORANDUM. With the sanction of the Lieutenant-Governor, the Chief Police Magistrate requests that the following Regulations respecting the laying of Informations be strictly observed in the several Police Offices of this Island:— 1. Whenever any member of the Police Force lays an information under a penal statute by which he seeks to obtain a pecuniary penalty, he will be required by the Police Clerk to pay one shilling in advance ; and should the same information be drawn by the Clerk, then the sum of two shillings and sixpence, or five shillings (as the case may be,) according to Schedule B., of the Consolidated Quarter Sessions' Act. 2. Should any Chief District Constable, District Constable, or Petty Constable lay any information, and fail in obtaining a conviction under the same, he is to be charged with all the usual fees for summonses, oaths, &c ; the Chief or Chief District Constable stopping the amount of the same out of the monthly pay of such Constable,—unless the sitting Magistrate or, Magistrates shall certify, that, in his or their opinion, the information so heard was beneficial to the public interests, or unless such information was laid by the order of some competent superior officer. 3. The District Police Clerks will furnish the Chief or Chief District Constables respectively with Monthly Accounts made up to the last day of each month, in order that all charges against Constables, as referred to in the proceeding section, may be duly enforced. 4. It is to be explained to the Constabulary by the Police or the Assistant Police Magistrates, that the object of these Regulations is to prevent frivolous or vexatious informations ; or, at all events, to discourage such being laid. The Constabulary may rest assured that they will always be supported and protected in their exertions for the public good : but they must bear in mind that nothing can tend more to derogate from the general respectability of the body, than affording, the Community any grounds for supposing, that informations are laid as a source of pecuniary profit alone ; or that, in the pursuit of this object, the casual and unintentional offender against the law, is confounded with the habitual and wilful one. These Regulations are to be read monthly to the Police of each District, and a copy is to be hung up in their several quarters. M. FORSTER, Chief Police Magistrate. POLICE. The Austral-Asiatic Review, Tasmanian and Australian Advertiser, Tuesday 13 April 1841 - Page 3 |
Despite these steps being taken to overcome frivolous complaints, some instances, relating in particular to police Constables, continued to come to the attention of the media, as noted in the Hobarton Guardian in 1848:
Although some of the worst men, (as the records will prove,) who were sent to this colony, as prisoners of the crown, to act in the capacity of constables, can, and do, incarcerate in many instances, on very frivolous charges, and in some cases, without any just charge at all, the free inhabitants of this colony ! We do contend that it is highly improper that probationers indiscriminately, should be placed in power either over their fellow prisoners or the free people of this colony. [5]
[*] AN ACT for extending to this Colony a certain Act of Parliament passed in the Third and Fourth Year of Her present Majesty intituled An Act to repeal part of an Act of the Forty-third Year of the Reign of Queen Elizabeth intituled An Act to avoid trifling and frivolous Suits in Law in Her Majesty's Courts in Westminster and of an Act of the Twenty-second and Twenty-third Year of the Reign of King Charles the Second intituled An Act for laying Impositions on Proceedings at Law and to make further Provisions in lieu thereof.
Appendix 1.
GOVERNENT NOTICE. No. 314.
Colonial Secretary's Office, 14th December, 1840.
His Excellency the Lieutenant-Governor desires it to be notified for general information, that it is his intention to submit to the Legislative Council for its adoption an Act, intituled "An Act for extending to this colony a certain Act of Parliament passed in the third and fourth year of Her present Majesty, intituled An Act to repeal part of an Act of the forty-third year of the reign of Queen Elizabeth, intituled An Act to avoid trifling and frivolous Suits in Law in Her Majesty's Courts in Westminster, and of an Act of the twenty-second and twenty-third year of the reign of King Charles the Second, intituled An Act for laying depositions on Proceedings at Law, and to make further provisions in lieu thereof," of which the general objects are to prevent a party from recovering costs in any action of trespass or trespass on the case where less damages than forty shillings are recovered, unless the judge or presiding officer before whom such verdict shall be obtained shall certify, that the action was brought to try aright beside the mere right to recover damages for the trespass or grievance for which the action shall have been brought, or that the trespass or grievance in respect of which the action was brought was wilful and malicious.
Provides that nothing in the Act contained shall deprive plaintiff of his costs in any action brought for a trespass over land, &c., or for entering into any dwelling in respect of which any notice not to trespass thereon or therein shall have been previously served by or on behalf of the owner or occupier of the land trespassed over.
By His Excellency's command,
M. FORSTER.
AN ACT for extending to this Colony a certain Act of Parliament passed in the Third and Fourth Year of Her present Majesty intituled An Act to repeal part of an Act of the Forty third Year of the Reign of Queen Elizabeth intituled An Act to avoid trifling and frivolous Suits in Law in Her Majesty's Courts in Westminster and of an Act of the Twenty-second and Twenty-third year of the Reign of King Charles the Second intituled An Act for laying impositions on Proceedings at Law and to make further Provisions in lieu thereof.
Whereas a certain Act of Parliament was passed in the Third and Fourth Year of Her present Majesty intituled An Act to repeal part of an Act of the forty-third Year of the Reign of Queen Elizabeth intituled An Act to avoid trifling and frivolous Suits in Law in Her Majesty's Courts in Westminster and of an Act of the Twenty-second and Twenty-third Year of the Reign of King Charles the Second intituled An Act for laying Impositions on Proceedings at Law and to make further Provisions in lieu thereof - And Whereas it is expedient to adopt and apply the said recited Act of Parliament in the Administration of justice in the Island of Van Diemen's Land and its Dependencies-Be it therefore enacted by His Excellency Sir John Franklin Knight Commander of the Royal Hanoverian Guelphic Order Knight of the Greek Order of the Redeemer and a Captain in Her Majesty's Royal Navy Lieutenant-Governor of the Island of Van Diemen's Land and its Dependencies by and with the advice of the Legislative Council that the said recited Act of Parliament and every clause provision and enactment therein respectively contained shall be and the same are and is hereby adopted and directed to be applied in the administration of justice in the said island and its dependencies in like manner as other laws of England are therein applied.
JOHN FRANKLIN.
Passed the Legislative Council this twenty-third day of June one thousand eight hundred and forty-one,
W. E. NAIRN, Clerk of the Council.
Further Resources:
Convict System: Justice System
The Prosecution Project: Tasmanian Courts: https://prosecutionproject.griffith.edu.au/other-resources/tasmanian-courts/
Policing in a Penal Colony: Governor Arthur's Police System in Van Diemen's Land, 1826-1836 https://www.jstor.org/stable/744299?seq=1
References:
[1] The Hobart Town Courier, 11 January 1833 - Page 2
[2] QUARTER SESSIONS, NEW NORFOLK, APRIL 8, 1833. The Tasmanian, Friday 12 April 1833 - Page 6
[3] Ibid
[4] LAUNCESTON: THURSDAY MORNING, June 24, 1841. Launceston Advertiser,Thursday 24 June 1841 - Page 3
[5] THE FELON POLICE. Hobarton Guardian, or, True Friend of Tasmania, Wednesday 31 May 1848 - Page 2
By E. Crawford (July 2021)
