mark finnane on custom and criminal justice


Mark Finnane, ‘Settler Justice and Aboriginal Homicide in Late Colonial Australia’, Australian Historical Studies 42, 2 (2011).

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.

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