Settler Justice and Aboriginal Homicide in Late Colonial Australia
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This article examines the hidden history of criminal justice in late colonial Australia by focussing on Aboriginal inter-se offending. Most Aboriginal defendants appearing in late colonial criminal courts were prosecuted for violent crimes against other Aboriginal people. The article explores how common such cases were and the degree to which the acknowledgment of cultural difference affected justice process and outcomes. The frequent invocation of ‘custom’ commonly led juries to recommend the mercy of the Crown to those Aboriginal defendants found guilty of committing a homicide. I argue that ‘custom’ was increasingly used by settler judicial processes as a shorthand way of explaining what was otherwise seen as unexplainable. In the twentieth century ‘custom’ would receive greater attention through the development of jurisprudence and policy around the idea of customary law.
Australian Historical Studies
© 2011 Routledge. This is the author-manuscript version of this paper. Reproduced in accordance with the copyright policy of the publisher. Please refer to the journal website for access to the definitive, published version.
Aboriginal and Torres Strait Islander History
Australian History (excl Aboriginal and Torres Strait Islander History)