R v Wedge

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Citation: R v Wedge [1976] 1 NSWLR 581

This information can be found in the Textbook: Prue Vines, Law and Justice in Australia: Foundations of the Legal System, (2nd ed, Melbourne, Oxford University Press, 2009) pp. 9-13.

Contents

Background facts

  • The Defendant [Wedge] was an Aboriginal.
  • He was been indicted for murder of another man, who was also Aboriginal.
  • The Defendant argued that the Australian court has no jurisdiction over the case considering the victim and Defendant were both Aboriginal. Only customary law should apply.

Argument

  • The Defendant argued that Australian law does not apply to Aboriginals because:
    1. Firstly, Aboriginal people are a sovereign people and thus are not subject to English law.
    2. Secondly, even if the Aboriginal people are not a sovereign people, the English law brought with the colonists is applicable only to themselves and only according to the circumstances.

Legal issues

Judgement

  • The Defendant's arguments are both based on the premise that NSW was not founded by 'settlement':
    • English law recognises three methods of acquisition of foreign land - conquest, cessation and settlement.
  • However, NSW was acquired by settlement, as according to the express authority of the Privy Council in Cooper v Stuart[1].
  • Settlement occurs when a colony is founded in a land in which there are no settled inhabitants or a settled system of law. In such a case, English law is immediately in force in the new settled colony (only those English laws as are applicable).
  • Since it has been decided that NSW was a 'settled' colony (since the Aboriginals were not properly settled and did not have a settled system of law) , the English law was immediately transferred to it and therefore applies to all the inhabitants.
  • The Aboriginal people are therefore not sovereign, and the English law applies to them. The English law is the only valid law in NSW.
  • Quoting R v Murrell[2]: “Aboriginals within the boundaries of the colony are subject to the laws of the Colony, and there is no difference between an offense committed by them upon a white man and an offence upon another aboriginal.”
  • The Defendant's plea of lack of jurisdiction therefore fails, and the court has jurisdiction to indict him for murder.

References

  1. (1889) 14 App Cas 286
  2. [1836] NSWSupC 35
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