JOURNAL: The Journal of Legal History XLV (2024), No. 3

 The Origin and Effect of the Nisi Prius Reports (Paul Newman) (OPEN ACCESS)

DOI 10.1080/01440365.2024.2324395
Abstract:

For some seventy years, rulings made by judges sitting at nisi prius were regularly reported, despite those reports being held in low esteem by the legal profession and such rulings being regarded as of little value as precedents. This article considers why those rulings, at least on matters of substantive law, were rejected as authorities, and sets out the reasons why they were nevertheless reported and cited. The article explains that the principal purposes of these reports were to introduce new members of the profession to the practicalities of preparing cases for trial, and to provide some authority, however slight, to cite in court. The article also explains that, while nisi prius rulings on substantive law were cited by nineteenth century judges, they were used differently to decisions of courts in banc. The greater authority of such rulings on points of evidence, at least up to the mid-nineteenth century, is also explored. The article concludes by examining the tendency of more recent judges to ascribe greater weight to nisi prius rulings than their nineteenth century counterparts, due to the modern profession’s ignorance of the former difference in the treatment of nisi prius rulings and the decisions of courts in banc.

On the Origins of Invalidation of British Colonial Legislation by Colonial Courts – the Van Diemen’s Land Dog Act Controversy of the 1840s – Part Two (Ian Loveland) (OPEN ACCESS)

DOI 10.1080/01440365.2024.2414535
Abstract:

The first part of this paper examined the background to and conduct of a case called Symons v Morgan before the Supreme Court of Van Diemen’s Land. Symons appears to be the first case in which a colonial court asserted jurisdiction to invalidate a colonial ‘statute’ on the basis that the legislation concerned contravened the colony’s constitution. The Supreme Court claimed the jurisdiction as a matter of inference. There was no imperial or colonial legislation expressly granting such a power, nor any judicial authority – whether colonial or imperial in origin – supporting the Supreme Court’s conclusion. The second part of this paper analyses the responses of the colonial government to the Symons judgment, and consequently the responses of the imperial government and Parliament to those colonial initiatives. The actions of the imperial government and Parliament show acceptance of the principle that colonial courts could review the validity of colonial legislation.

‘And Along Came DNA’: The Introduction of DNA Evidence in Australian Courts in the Applebee case (Laura L. Dawes) (OPEN ACCESS)

DOI 10.1080/01440365.2024.2414536
Abstract:

In 1989, serial offender Desmond Applebee was tried in the Australian Capital Territory for the rape of a young woman. A first for Australian courts, the prosecution tendered DNA evidence to counter Applebee’s alibi that he had been unconscious in his car at the time. However, despite the handling of novel scientific evidence being hotly debated at the time, the trial failed to engage with the legal issues this new evidence raised. The defence was unprepared and under-resourced to put into issue evidentiary principles; there was no systemic means for addressing the issues raised by novel scientific evidence if the defence did not do so. This paper argues that the Applebee case is a dissatisfying case of first impression, graphically illustrating the struggles legal systems can have interrogating novel scientific evidence. The case helped smooth adoption of this new form of evidence. How courts receive and respond to scientific evidence is today again in mind owing to the recent quashing of Kathleen Folbigg’s murder conviction following genetic discoveries; Applebee shows why relying on a particular defendant and particular defence counsel to carry out a gate-keeping function for admissibility of novel evidence collides with practical realities of the court system.

Scottish Legal History Group Report 2022 (Andrew Simpson)

Migrations of Manuscripts 2022 (John Baker)

Book reviews:

• Women, Their Lives, and the Law: Essays in Honour of Rosemary Auchmuty edited by Victoria Barnes, Nora Honkala and Sally Wheeler, Great Britain, Bloomsbury Publishing, 2023, 320 pp., £81 (hardback) £64 (ebook) ISBN: 9781509962082 (Erika Rackley)
• Landmark Cases in the law of punitive damages edited by James Goudkamp and Eleni Katsampouka, Oxford, Hart Publishing, 2023, xxiii + 379, £108.00 (hardback), ISBN 978-1-50996-700-1 (Nicholas Sinanis)
• Copyright and Cartography: History, Law, and the Circulation of Geographical Knowledge by Isabella Alexander, Oxford, Hart Publishing, 2023, 8 + 297 pp. 307, £75.50 (hardback), £38.69 (paperback, free open access e-book), ISBN 978-1-50995-833-7 (Elena Cooper)

Read all articles here.