Outlawry in Colonial Australia

1. Outlawry in Colonial Australia The Felons Apprehension Acts 1865-1899 (NSW, Qld and Vic). Michael Eburn

2. Demands to introduce outlawry • The colony is not a colony of outlaws • But a ‘Law and Order’ crisis in 1865 – Ben Hall, Dan Morgan – leads to demands for outlawry. • ‘Why should not bushrangers guilty of murder and refusing to surrender for trial be tried and convicted ex parte, and then be outlawed?’ ANZLHS Conference, Auckland NZ

3. What was the problem? The law required a person to call upon an offender to surrender before force could be used to make an arrest. If the bushranger did attack then, and only then, could the arrestor use force in self defence. ANZLHS Conference, Auckland NZ

4. Sydney Morning Herald ‘Had Morgan been approaching the house without having committed on the way any act of aggression, the man [Quinlan] could not have fired the gun which brought him down, without being liable to prosecution for murder.’(13 April 1865, 4). ANZLHS Conference, Auckland NZ

5. ‘If any person were to venture to shoot one of these men … without previously calling upon him to surrender, that person would be liable to be placed on his trial for murder, and probably he would be convicted of manslaughter …’ (Parliamentary Debates, Victoria, 30 October 1879, Dr Madden) ANZLHS Conference, Auckland NZ

6. The solution • The outlaw could be shot on sight! • ‘… a person may stalk them; he may steal upon them, and shoot them down as he would shoot a kangaroo.’ (Parliamentary Debates, Victoria, 30 October 1879, Dr Madden) ANZLHS Conference, Auckland NZ

7. The process • An allegation on oath that a named person had committed an offence punishable by death. • The Attorney General commences proceedings by information in the Supreme Court. ANZLHS Conference, Auckland NZ

8. A judge, if satisfied that the offender was at large and would be likely to resist ‘all attempts by ordinary legal means to apprehend him’ could issue a bench warrant • Judge orders that a summons is published in the Government Gazette and in other newspapers likely to bring the summons to the offenders attention, requiring the offender to surrender by a set date, to face his trial. ANZLHS Conference, Auckland NZ

9. If, after the date nominated for the person’s surrender, the person was not in custody, a Judge could declare the person outlawed. • The Governor was then required to have published ‘… in the Gazette and in one or more Sydney and one or more country newspapers…’ a proclamation to the effect that the person had been outlawed. ANZLHS Conference, Auckland NZ

10. Consequences • Any person, • if the outlaw was armed or if the person had reasonable grounds to believe the outlaw was armed, • could ‘apprehend or take such outlaw alive or dead’ • without ‘being accountable for using of any deadly weapon in aid of such apprehension whether its use be preceded by a demand of surrender or not.’ ANZLHS Conference, Auckland NZ

11. Further Consequences • Assisting an outlaw is an offence • Extra police powers • Right to demand entry • Right to commandeer any horse, saddle, firearms food and/or ammunition. ANZLHS Conference, Auckland NZ

12. Acts in NSW, Vic, Qld • New South Wales • 1865, 1866 • Queensland • 1866 • Victoria • 1878, 1879 • New South Wales (again) • 1879, 1899 ANZLHS Conference, Auckland NZ

13. Who were the outlaws? • New South Wales • John Gilbert and John Dunn, Thomas Clarke and Patrick Connell and Jimmy and Jo Governor. • Ben Hall and Dan Morgan were not outlaws. • Queensland • No-one • Victoria • Ned and Dan Kelly, Joe Byrne, Steve Hart • Legislation lapsed two days before Glenrowan siege! ANZLHS Conference, Auckland NZ

14. Early colonial law • Robbers and Housebreakers Ordinance 1830 (NSW) • Anyone could detain suspected felons or robbers. • Burden of proof upon accused. • Wide powers to stop and search. • Act provided a defence to civil legal action. ANZLHS Conference, Auckland NZ

15. An ordinance for the Suppression of Violent Crimes committed by Convicts illegally at large 1854 (WA). • Use of fatal force to arrest armed, escaped convict, was justifiable homicide. ANZLHS Conference, Auckland NZ

16. ‘…this type of Act had been unused in Britain for many centuries. So it was surprisingly archaic that as recently as the latter half of the 19th century, the Victorian and New South Welsh Governments revived this implacable and obdurate law’Nicky Cowie <http://www.bailup.com> ANZLHS Conference, Auckland NZ

17. Common law v Statute • Stephen CJ said the legislation was ‘entirely … in accordance with the principles of our ancient English law’. • Qld AG said ‘The Bill… brings up a very old provision of the common law in England …’ • Was it the same as the common law? ANZLHS Conference, Auckland NZ

18. Common law v Statute Offender called 5 time at Notice in press.Court. ‘early law’ outlaw could Fatal force if offenderbe killed on sight. armed or reasonablyBy 18th century fatal force believed to beonly if fleeing or resisting armed.arrest Outlaw stood convicted Outlaw not convicted– Court only had to pass – still had to stand trialsentence if arrested. ANZLHS Conference, Auckland NZ

19. Outlaw myths • A significant part of Anglo-Australian culture. • Themes: ‘robs from the rich to help the poor’; is driven to crime through no fault of his own; must be chivalrous; is brave, noble and does not offer unnecessary violence. He is usually to be of greater moral virtue that his pursuers and must die game. ANZLHS Conference, Auckland NZ

20. Outlaws of ‘legend’: The Clarke brothers, Frank Gardiner, The Gilbert-Hall Gang, the Governor brothers, the Kelly gang, Dan Morgan, Frank Pearson, Henry Readford, Walyer, Musquito and Frederick Ward • ‘Outlaws’ in a popular sense, but not the legal sense. ANZLHS Conference, Auckland NZ

21. Link between law and legend

22. Conclusions • ‘[T]he medieval concept of outlawry is unacceptable in modern society’ (Cross v Kirkby (EWCA,18 February 2000)). • Not so in the 19th century – legislation did take outlawry back to ‘early law’ • Interpretation – was not summary justice – accused still had his trial. ANZLHS Conference, Auckland NZ