A ‘Very Lamentable Case’: Indigenous Women as Defendants in the Upper Courts of Western Australia, 1830-1890

Although there is a growing body of research around the increasing number of Indigenous women tried in Australian courts and several scholars of Australian history have written on Indigenous women as victims of crime, there has been surprisingly little academic interest in Indigenous women who appeared in the criminal justice system as defendants during the colonial period. This research begins to address this imbalance by examining the trials of Aboriginal women in the upper courts of Western Australia between 1830 and 1890. The objective is to understand how Aboriginal women were treated in the courtroom. How did the conviction rate of Indigenous women in Western Australia compare to the general population of women? What weight was given to cultural difference in the evidence presented? This chapter considers the experience of the trial process, and the varying outcomes, for Aboriginal women. It argues that the Courts of General Sessions Act 1845 (WA), where defendants were tried in the upper courts before Magistrates, who often had no legal training, disproportionately impacted Aboriginal defendants. Furthermore, Indigenous women’s experience of the criminal justice system was influenced by racialised attitudes and an unequal system of laws which differentiated between Indigenous and non-Indigenous subjects.