Aboriginals, evidence and summary trial of (1840) (WA)

WESTERN AU STRA LIA.

ANNO QUARTO

VICTORIA: BEGINS

No. S.

ap/•=11111SPi

An Act to allow the Aboriginal Natives of Western Australia to give information and evidence in Criminal cases, and to enable Magistrates to award summary punishment, for certain offences.

HEREAS many of the forms, requisites, and provisions of the preamble.

English law have been found to be wholly inapplicable to the

Aboriginal Inhabitants of the Territory of Western Australia, inasmuch

as there is strong reason to believe, that these people are entirely

ignorant of the existence of any future state of rewards and punishments, and do not acknowledge any form or mode of adjuration as binding npon,them, in consequence of which much failure of justice ensues, and many serious offences and crimes, which have been committed with their Privity only, are unavoidably suffered to pass unpunished ; And 'whereas it is expedient to advise some means whereby such offences

may be punished with greater facility and certainty than are at present

attainable :—Be it therefore enacted, by His Excellency the Governor of Western Australia, by and with the advice and consent of the Legislative Council thereof, that from and after the passing of this Act,

Anno Quarto Viet. Reg., No. 8.

Any Justice of the it shall and may be lawful for any Justice of the Peace of the said	Peace may receive COL OR
the information of an y, upon any complaint being made before him by any of the
Aboriginal Native on Aboriginal race of this Territory, to receive and take the Information ofhis affirmation, with- out administering the the said Individual upon his affirmation or declaration to tell the truth, usual form of oath. the whole truth and nothing but the truth, without administering the

usual form of oath, and to reduce the substance of such Information into writing, if it should appear necessary so to do, and thereupon to issue his summons, or his warrant, as the nature of the case may require, or to take any other such proceedings as may be usual and proper in the case of an information made by any of Her Majesty's natural born subjects.

On the inquiry or II. AND be it further enacted, that upon any enquiry into Inv

trial the Evidence of	any of the Aborigines matter of complaint, or upon the trial of any offence, whether committed
may be received on by
affirmation without / one of the Aborigines or by any other person, it shall and may be e 1 r
administering the lawilli for any Court, or for any Justice or Justices of the Peace, to usual form of oath. receive the evidence of any of the Aborigines without administering the

usual form of oath, such Aboriginal Native having first made an affirma- tion or declaration to tell the truth, the whole truth, and nothing but

stage of proceeding ,In any prelimin ary the truth : provided always that in the case of any proceeding in the na-

Such information or Lure of a preliminary enquiry, the substance of the Evidence or Informa. evidence is to be re- tion of such Aboriginal Native shall be reduced to writing, and signeddated to writing,

Signed by a mark by a mark by such Native, and verified by the signatnre of one or more Justice. and verified by the of the Justices of the Peace before whom such Information or such Evi-

(mace shall have been giver.

. III. AND whereas it is impossible to compel or secure the atten-

dance of any of the Aboriginal race at any appointed time and place,

by the usual and proper course of proceeding according to the English

hearing, the indivi. or trial, the Aboriginal Native who gave his or her Information or En-time of enquiry or,	If, at the appointed law ;---Be it further enacted, that if at the appointed time of the enquiry
formation does not dual who gave the in- dence in any preliminary stage of the proceedings shall not appear when
appear,, then such called upon, then in such case, such Information or Evidence so taken information or evi- as aforesaid, and so reduced to writing and so signed and verified asdeuce so written, and p
signed, and verified, aforesaid, may be read and received as Evidence, in any future stage of
may heread in evi - the proceedings relative to the same transaction, without the necessity ofdence.

bringing forward the same Individual, to repeat his testimony orally :

The degree of erect- provided always nevertheless, that the degree of credibility to be attachedbility to be attached

to such information to any such Information or Evidence, whether in the preliminary, or in or evidence shall be the final stage of the proceedings, and whether oral or written, shall be

entirely left to the a

decision of the Jus- entirely left to the decision of the Justice or Justices, or of the Court tiees or Court and and jury respectively, according to the Tribunal before which such In-Jury, and is not to he

considered cone/mice formation or Evidence shall have been offered, but no such Information

unless supported by op

strong corroborative Evidence shall in any case be considered as conclusive unless the

circumstances.	same shall be supported by strong corroborative circumstances.
Any person making

such affirmation IV. AND be it further enacted, that if any Aboriginal Native

falsely, is to be pun-

fishable	as in case of making snch affirmation or declaration, as aforesaid, shall be convicted
perjury.

Anno Quarto Viet. Reg., No. 8.

of having wilfully, falsely, and corruptly affirmed or declared, any mat- ter or thing which if the same had been made upon oath in the usual Form, would have amounted to wilful or corrupt perjury, he or she shall incur the same penalties and forfeitures as by the laws and statutes of England are enacted against persons convicted of wilful and corrupt perjury.

V.     AND be it further enacted, that it shall be lawful for any two

or more Justices of the Peace, not interested in the subject matter of the	complaint, to enquire into and try all offences, except as hereinafter Justices ffmay try
mentioned, with which any of the Aboriginal race shall be charged, andace:a-a: esentence anodf
if the person so charged shall be proved to have committed such offence, imprisonment not ex-
then it shall be lawful for such Justices as aforesaid to sentence the eeedIng one yes'.
offenders to be imprisoned, or to be imprisoned and kept to hard labour
in the common gaol or place of confinement appointed for such persons,
for any time not exceeding one year, according to the nature and mag- But f the'offence
nitude of the offence : Provided always, and be it enacted, that if the ot such a nature i as
offence with which such Aboriginal offender shall be charged shall be t gdres eeeZmIstretnetr,
considered by such Justices to be of so serious nature as to deserve or re- then the case should quire a greater degree of punishment, then, in such case, such offender hate trie referred tf l efe toerr tsrei
shall be committed to take his trial at the usual Sessions of the Peace SiMIS' for the said colony.

VI.     AND be it furtner enacted, that if the offence which any of If the offence shall be

the Aborigines shall be proved to have committed, shall be of a trivialgiat i:entgloungare, or;

nature, or if it shall appear to such Justices that it would be more satis- Ittdyisable, the Juts-

factory to the friends of the offender, and likely to operate beneficially as wteheisp rt:e:asee

a general example in such case, it shall be lawful for the said Justices to ojith mna:te than

substitute the punishment of whipping, with any number of stripes not 24 stripes. e

exceeding Twenty-four, provided that the punishment of whipping _	shall
duly be inflicted in the case of male offenders.

VII.      AND be it further enacted, that in all cases in which any In all cases of sum.

punishment shall be summarily inflicted by such Justices under this Act, maryanishm pept the

> Justices are to re-

they are hereby required to make a report of the circumstances of the port the case to the

case to the Colonial Secretary, for the information of the Governor and etffaunt.

the Executive Council.

VIII.      AND be it further enacted, that this Act shall be and con-

tinue in force for two years from the date of its passing the Legislative

CounciL

JOHN HUTT,

GOVERNOR AND COMMANDER-1N-CHIET

Passed the Legislative Council

the 2nd day of July, 1840.

WALXINSHAW COWAN,

Clerk of the Council.