'Mad' Edwin Withers and the Struggle for Fair Trial Rights in NSW

Australian and New Zealand Law and History Society Inc
Publication Type:
Journal Article
Law & History, 2016, 3 pp. 78 - 103
Issue Date:
Full metadata record
Since the 1980s, a number of fair trial rights and civil liberties have been eroded in Australia, particularly in respect to summary justice and police powers. This article traces the 'bottom-up' origins of some of those rights and liberties in colonial New South Wales. It focuses on the activist Edwin Withers and his interactions with the Parramatta magistracy in the mid 1840s. The Withers example enables us to see how some fair trial rights and civil liberties resulted from community-based social activism, which relied upon the legislature and higher court authority to become law. The importance of these rights - for example, the right to counsel, the right to a fair and impartial tribunal and protection against arbitrary detention - is demonstrated by the very fact that they issued from the working and middle classes and are implicated within wider class relationships involving residents of a local community. Using archival research and qualitative analysis, this article has important implications for Australian legal history in relation to the adoption of the Jervis Acts 1848 (UK), some of the first summary procedure legislation enacted within colonial NSW. The article demonstrates how the fair trial rights campaign at Parramatta resulted in amendment to the adopted Acts in the colony.
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