On Australia Day, Radio National’s Law Report replayed an episode about the birth and development of our legal system. How did our democracy and strong independent legal system evolve from a bunch of desperate convicts and their jailers? This post was inspired by one of the stories in that program.
Conditions were harsh in 1788 and early trials were conducted by the Judge-Advocate and six officers (a majority of 5 out of the 7 was required for a capital offence). The first Judge Advocate (the key position in the criminal “justice” system) was Captain David Collins who exercised both prosecutorial and judicial functions without proper independence. Despite the conflict, history apparently shows he generally did his best to act fairly and lawfully.
It only took about a month from the arrival of the first fleet before the first execution occurred. Thomas Barrett and three others were convicted of “feloniously and fraudulently taking away from the public store beef and pease, the property of the crown.” It’s not hard to see why half starved convicts might steal food and also not difficult to see why a raid on the stores was taken very seriously by the authorities.
There is an interesting back story to Barrett. This was in fact the third time he had been sentenced to death (did he have learning difficulties?). In 1782 his death sentence for stealing a silver watch was commuted to transportation. He was then held on a convict hulk awaiting transportation and was one of several prisoners who led a “rebellion”. His second death sentence for his part in that episode was also reprieved and he ended up in the first fleet in Australia in 1788. However, his luck ran out on 27 February 1788 when he was tried, convicted and the “court” ordered his execution to be carried out before sunset on that day. He was hanged from a tree near the corner of what is now Essex and Harrington Streets in Sydney (where I took the photograph of the plaque).
What happened to the three others? The youngest was bullied (at gunpoint apparently) into being the hangman and was pardoned for accepting the role as common executioner. The other two were given a 24 hour reprieve before being led back to the hanging tree the next day. They were then also spared death by order of the Governor (but undoubtedly needed clean underwear). They were then “banished to some uninhabited place”!!
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