Federation, War & Depression (1901-1945)
On 1 January 1901 New South Wales joined five other British colonies across the continent to form the Commonwealth of Australia. The High Court of Australia first sat in October 1903 and in following decades the Supreme Court relinquished jurisdiction over some areas of law, such as bankruptcy, to the Commonwealth.
However, the first decades of the twentieth century also saw far-reaching social reforms and innovations, which affected the Supreme Court greatly. Women in New South Wales gained the right to vote in 1902 and became eligible for admission to the legal profession in 1918. In 1909 the Court heard its first case involving excessive speed by a ‘motor carriage’.
This was also the era when war and severe economic hardship would test democratic norms and institutions, but the Supreme Court of New South Wales scrutinised the actions of government and guarded against the worst excesses of executive power.
1886-1910
Frederick Darley, Scott Family collection of studio portrait photographs, 1901.
Sir Frederick Darley
Sir Frederick Darley was the sixth Chief Justice of New South Wales and its second-longest serving. He practised as a barrister for nine years at the King’s Inns in London before migrating to Australia and being admitted to the New South Wales Bar in June 1862. He became a member of the Legislative Council in 1868 and was involved in drafting company, matrimonial causes and bankruptcy laws. In 1886 Darley initially refused the invitation to become Chief Justice but relented after Julian Salomons abruptly resigned from the post. During his 24 years in the office, he guided the Court through federation and the installation of the new High Court at the pinnacle of the Australian judicial hierarchy.
1914-1918
The war: N.S.W. recruiting campaign (Sydney), New South Wales Government, 1915.
First World War
During the First World War Supreme Court judges were stalwart public supporters of the British Empire. In 1915 Chief Justice Sir William Cullen, with both his sons serving at Gallipoli, declared the conflict to be a ‘righteous war’, while Lady Cullen became a leading figure in the local Red Cross. Justices Street, Ferguson, and Simpson each lost a son, while many others were wounded in action. In January 1917, the Weekly Times wrote, ‘In proportion to numbers, no trade or profession in Australia has suffered more bereavement in the war than have the judges in the higher tribunals.’
1910-1925
Harold Cazneaux, Portrait of Sir William Cullen, 1921. Permission by the Cazneaux family estate.
Sir William Cullen
Sir William Cullen was the first locally born and raised Chief Justice of New South Wales. After a modest upbringing near Jamberoo, Cullen won a scholarship to enter the University of Sydney where he excelled academically and eventually attained a Doctor of Laws (LLD). He was called to the Bar in April 1883. As a member of the Legislative Assembly, and then the Legislative Council, Cullen was a staunch nationalist and vocal supporter of federation. He took silk in 1905 and soon became one of the foremost advocates to appear before the High Court. He was appointed Chief Justice of New South Wales in February 1910.
1912
John Laverty, High Treason, Court of Criminal Appeal: the Trial of Sir Roger Casement 1916, oil on canvas, 1916.
Court of Criminal Appeal
The criminal justice system in New South Wales was harsh and had long mandated capital punishment for a wide range of offences, from murder and bushranging to stealing sheep. Regrettably, juries sometimes made mistakes and appeals on the facts were rarely granted.
By the late nineteenth century, reform was underway in England with the Criminal Appeal Act of 1907. Five years later New South Wales established the Court of Criminal Appeal. Convicted persons could ask for an appeal (‘seek leave’) on questions of fact or against the severity of their sentences. The Court could also order a new trial if it rejected (‘quashed’) an erroneous conviction. Appeals are generally heard by three judges, although five may sit when significant legal issues need to be considered.
1930
Jack Lang Premier of New South Wales, 1930.
Constitutional Crisis
Amid the worsening economic crisis of the Great Depression, the New South Wales Government planned to increase spending on public works and to defer interest payments on its loans. Unable to gain a majority in the Legislative Council, Premier Jack Lang introduced Bills to amend the State’s Constitution and to abolish the Upper House without a referendum. When the Council passed the legislation, two of its members, Arthur Trethowan and Thomas Playfair, obtained an injunction from the Supreme Court to prevent the Bills from being presented to the Governor for royal assent. On 23 December 1930 in Trethowan v Peden, the Supreme Court upheld the grant of the injunction. In appeals to the High Court (1931) and the Privy Council (1932), the Supreme Court’s decision was upheld.
1925-1934
Chief Justice Sir Philip Whistler Street, c. 1930.
Sir Philip Street
Sir Philip Street guided the Supreme Court through the economic and political crises of the early Depression years. Street was called to the New South Wales Bar in 1886. He was sworn-in as a judge in February 1907 and succeeded Sir William Cullen as Chief Justice in January 1925. In December 1930 Street presided in Trethowan v Peden, when Premier Lang attempted to abolish the State’s Upper House of Parliament. His involvement in complex and delicate constitutional matters did not end there. In May 1932, Street advised Governor Sir Philip Game in connection with the dismissal of the Lang government.
1935
Elevation to macquarie Street, Planning Commmittee, 1935.
Proposed Law Courts Complex
In 1934 the Sheriff reported to the Under Secretary of Justice on the state of the Supreme Court’s buildings, declaring that based on ‘personal knowledge of many Court buildings in the Commonwealth, and in other parts of the British Empire … the Sydney Courts are probably the worst in existence’.
In 1935 a planning committee proposed that Parliament House, Sydney Hospital and the Mint should be demolished and replaced by a law courts complex, which would have dominated the eastern side of Macquarie Street. A competition for the design of a new courthouse was won by the firm Peddle Thorp & Walker, which contemplated three buildings facing Martin Place, linked by a colonnade.
The design drew intense public criticism, and the outbreak of the Second World War put paid to any suggestion that it would proceed.
1939-1945
Maurice Bramely, Join us in a victory job, lithograph printed in colour on paper, Department of National Service, 1943.
Second World War
During the Second World War the Supreme Court heard appeals involving the National Security General Regulations, which severely curtailed civil liberties. While extremely critical of their drafting, Chief Justice Sir Frederick Jordan ruled in Ex parte Walsh that internment of the Australia First Movement was lawful. Thousands of lawyers and law students served in the armed forces. Russell le Gay Brereton, who established the first War Crimes Tribunal at Labuan, was one of nearly 50 war veterans who subsequently became judges of the Supreme Court. One prosecutor, Athol Moffitt, would become President of the Court of Appeal in 1974.
1934-1949
Chief Justice Sir Frederick Jordan, 1934.
Sir Frederick Jordan
Frederick Jordan’s family migrated from England to Australia when he was five. He was awarded scholarships, which enabled him to attain his Bachelor of Laws in 1907. He was admitted to the Bar that same year and quickly built up a successful equity practice and took silk in 1928. He succeeded Sir Philip Street as Chief Justice in February 1934. Widely regarded as a gifted jurist and able administrator of the Court, Jordan’s judgments are still highly regarded for their elucidation of legal principle. Jordan was a renowned bibliophile, and his extra-judicial writings reveal expansive and opinionated scholarship in art, literature, religion and popular culture.
1935
Severed arm of James Smith with boxer tattoo, 1935. Colourised.
Shark Arm Murder
One of the more famous criminal cases prosecuted in the Supreme Court in the twentieth century was the ‘Shark Arm Murder’. On Anzac Day 1935, a 4m tiger shark exhibited at the Coogee Aquarium regurgitated a human arm. Examination revealed the arm had been dismembered and the shark had later ingested it, leading to a homicide investigation. The arm featured a distinctive tattoo of two men boxing. The tattoo was the key to identifying who the arm belonged to, James Smith, a bankrupt builder and amateur boxer, who had been missing for several weeks. The case was brough to the Supreme Court when Smith’s best friend was charged with murder. He was, nevertheless, acquitted and the murder remains unsolved.
1939
Criminal Record of John Trevor Kelly, 1939.
Last Death Sentence
On 24 August 1939 the last person to be executed in New South Wales, John Trevor Kelly, was hanged in Long Bay Gaol. Kelly was convicted for the murder of Marjorie Constance Sommerlad at her family’s rural property near Tenterfield on 4 February 1939. Kelly, a farm hand at the property, had a criminal record but pleaded not guilty on the grounds of insanity. A jury returned a verdict of guilty. Kelly’s appeal against his conviction and sentence was rejected by the Court of Criminal Appeal and an application for leave to appeal to the High Court was rejected. State Cabinet declined the commute his sentence. The death penalty remained on the statute books for murder and rape until 1955, but it was not until 1985 that it was abolished altogether.
1943
William Dobel, Mr Joshua Smith, oil on canvas, 1943.
The Archibald Prize
In 1944 the war-weary people of Australia were engrossed by a four-day trial before the Supreme Court involving the award of the Archibald Prize to William Dobell. Two finalists, Mary Edwards and Joseph Wolinski challenged the decision on the grounds that the portrait of Joshua Smith was not a portrait, but a caricature. The trial before Justice Roper featured two of the most talented barristers of the day, Garfield Barwick and Frank Kitto, both of whom became High Court judges. The Court upheld the decision of the Trustees of the Art Gallery of New South Wales, but the intense public scrutiny and pressure of the trial took an immense personal toll on Dobell.