Criminal Prosecutions in Western Australia: A View from the Nineteenth Century

• Author: Peter Handford
• Position: Emeritus Professor, Law School, University of Western Australia
• Pages: 143-171

143

CRIMINAL PROSECUTIONS IN

WESTERN AUSTRALIA:

A VIEW FROM THE

NINETEENTH CENTURY

PETER HANDFORD*

Many scholars have analysed the differences between criminal trials in common and civil law

systems. The adversarial trial in England, Australia and elsewhere provides a contrast with the

inquisitorial process found in continental Europe and other civil law countries. Legal history adds

another dimension. The common law criminal trial was once less adversarial and more like the

civil law model than is generally appreciated. Lawyers came late to the prosecution process: the

accused was not permitted to be defended by counsel, and so it was rare for counsel to appear

for the prosecution. This meant that the judge took the lead in questioning the accused and the

witnesses. Counsel were nally permitted to appear in the early 18th century, and this was the key

factor in the evolution of the modern adversarial trial.

One of the elements in this story is that in England, for many years, prosecution was primarily

carried out by lawyers in private practice. It was not until 1985 that the Crown Prosecution

Service was established. It is here that the Australian experience has been rather different. In

Australia, from the early days of settlement, public ofcers were appointed to undertake criminal

prosecutions. In part, this was due to the special circumstances prevailing in the early years of

colonial settlement, when very few lawyers were available. It was also due to difculties with

transplanting fundamental aspects of English criminal procedure such as the grand jury: in

Western Australia, when the grand jury was abolished, the Advocate-General and the Crown

Solicitor assumed full responsibility for prosecutions. The Western Australian experience also

shows the extent to which English rules and practices were perpetuated or adapted in a small

colony on the other side of the world.

I INTRODUCTION

The contrasts between criminal procedure and criminal trials in common law and

civil law systems are well known, and have been frequently analysed by scholars.1

* Emeritus Professor, Law School, University of Western Australia. My thanks are due to

Professor John Langbein, Sterling Professor of Legal History, Yale University, whose

research has provided the inspiration for this article, for commenting on a draft of this

article and for his friendship over many years; Lord Hughes of Ombersley, a Justice of the

Supreme Court of the United Kingdom (and while a Lord Justice of Appeal, Vice-President

of the Criminal Division), for providing information about prosecution practice in England

in the 1970s and 1980s; Andrew Gill, who also read and commented on the draft and led

me to a number of additional sources; and Rosemary Fitzgerald, Museum Curator at the

Old Court House, Perth, on behalf of the Law Society of Western Australia, for providing

access to archival sources. Responsibility for errors remains mine.

1 See eg Peter Stein, Legal Institutions: The Development of Dispute Settlement

144

The adversarial system of the common law lends itself to depiction in movies and

TV dramas.2 Counsel for the prosecution and the defence argue opposing cases

before the judge and the jury, the judge directs the jury, and the jury considers

its verdict. The trial is preceded by a process of investigation, carried out by

the police, leading to the charging of the suspect. Even though there may be a

preliminary hearing, everything looks forward to the trial, when all the evidence is

put before the court. It has been said that the whole process resembles a theatrical

performance and the rehearsals for it.3

Acionados of crime dramas set in continental Europe, from Maigret to Wallander,

will know that the process there is rather different. Whereas in common law

systems investigation is in the hands of the police, in Europe it is carried out

under judicial supervision.4 The process focuses on the collection of all the facts

and the evidence, which is compiled in the form of a dossier that is ultimately

placed before the court. The court consists of a bench of judges,5 all of whom will

be well versed in the contents of the dossier by the time the trial takes place. At the

trial, the court examines the witnesses – though it is not always necessary to go

through all the evidence in court – and counsel for the prosecution and the defence

play only minor roles. There is none of the drama of examination and cross-

examination found in the common law. Instead of the analogy of the theatrical

performance, it has been said that the process resembles a train proceeding from

stop to stop until it arrives at its ultimate destination.6

History adds another dimension to this comparison. A leading legal historian and

comparative law scholar, Professor John Langbein, has shown that the adversarial

criminal trial is not something that has existed from time immemorial, but is a

much more recent creation than is generally suspected. This is because counsel

were latecomers to the prosecution process: for many years, the accused was not

permitted to be defended by counsel, and so it was rare for counsel to appear for

the prosecution. This meant that the judge conducted proceedings, taking the lead

in examining the witnesses and asking questions. It was not until the early 18th

century, when the accused was nally permitted to be represented by counsel,

and counsel began to appear for the prosecution, that the adversarial trial as we

(Butterworths, 1984) chs 3-5.

2 See eg Kathy Laster, The Drama of the Courtroom (Federation Press, 2000).

3 EJ Cohn (ed), Manual of German Law (Oceana, 2nd ed 1971) vol 2, 174 (Cohn). In this

article I examine trials for indictable (serious) offences before a judge and jury. Trials of

summary offences in magistrates’ courts, where there is no jury, are somewhat different.

The great majority of criminal offences are tried in magistrates’ courts.

4 In France, the investigation is supervised by the juge d’instruction, in Germany by the

Staatsanwalt (the state attorney).

5 In France, the most serious offences are tried by a Cour d’assize consisting of three

professionally qualied judges and nine lay judges; other serious offences are tried by

a Tribunal correctionnel consisting of a bench of three professionally qualied judges.

In Germany, serious offences are tried by a court (usually the criminal chamber of the

Landgericht) consisting of three professionally qualied judges and two lay judges.

6 Cohn, above n 3, 174 (although here Cohn was referring primarily to civil proceedings).