Court of Criminal Jurisdiction (NSW)

Last updated

The Court of Criminal Jurisdiction was a criminal court established in 1787 under the auspices of the First Charter of Justice in the British colony of New South Wales, now a state of Australia. The Court of Criminal Jurisdiction was the first criminal court in the colony. The court was abolished in 1823, replaced by the Supreme Court of New South Wales.

Contents

Background

The British government established the colony of New South Wales primarily as a penal colony, although it did encourage settlement. Its principal purpose was to house prisoners from Great Britain. Captain Arthur Phillip was appointed as the colony's first governor.

Arthur Phillip Arthur Phillip - Project Gutenberg eText 12992.jpg
Arthur Phillip

The British authorities foresaw the need for a judicial system to be established in the colony to deal with criminal matters. This was to be a two-tier system. The higher tier was to be the Court of Criminal Jurisdiction, which was to deal with the major offences occurring in the colony. The lower tier was to be the existing English system of appointing justices of the peace to administer the lesser type of offences.

Jurisdiction

The court was empowered to deal with any crimes committed in the colony of New South Wales. The colony at that time took in what is now Tasmania, then called Van Diemen's Land, Victoria, Queensland, South Australia, the Northern Territory, the Australian Capital Territory, and of the course the current state of New South Wales. The scope of the colony was quite limited in its early days, so jurisdiction over places such as South Australia did not practically occur. In the case of Van Diemen's Land, the court rarely sat there, and prisoners were brought to Sydney for trial, or dealt with summarily in Hobart. The court also had jurisdiction to deal with offences in the colony of Norfolk Island, although it did not sit on that island. Prisoners were usually shipped back to Sydney to be dealt with. Technically, the court had jurisdiction over offences committed in New Zealand but practically did not deal with any such matters.

Constitution

New South Wales Courts Act 1787
Act of Parliament
Coat of Arms of Great Britain (1714-1801).svg
Long title An Act to enable His Majesty to establish a Court of Criminal Judicature on the Eastern Coast of New South Wales and the Parts adjacent.
Citation 27 Geo. 3. c. 2
Dates
Royal assent 23 February 1787
Other legislation
Repealed by Statute Law Revision Act 1871
Status: Repealed

The court was a statutory court established under an act of the British Parliament. The court had virtually unlimited powers to deal with criminal offences. The court was constituted by the colony's Deputy Judge Advocate, or as the office came to be more commonly called, Judge Advocate. He sat, as president of the court, with six military officers to constitute the tribunal. The first Deputy Judge Advocate was David Collins. [1]

In its early days, the court was convened when required. It was convened following a precept issued by the Governor under his hand and seal. There were therefore no regular sittings during the early years of the settlement, and it met only whenever the Governor summoned it.

Procedure

The procedure at the trial of an offender was different from the criminal procedures then existing in criminal courts in England. The charge against the prisoner was not a formal indictment; instead, it was a plain statement of the offence committed. Lawyers were not permitted (and in the early days of the court, there were none in the colony anyway), so technical objections were unlikely to arise. Only one of the judge-advocates appointed to the role over the years was a lawyer. The rest were just military officers, so their knowledge of the law was not great.

The first court assembled in full military regalia with a full military guard. Phillip wished the first sittings to be an example to the convicts and to impress upon them the authority of the court and the rule of law. Collins later in his memoirs reflected that the first court was a failure, as the sentences imposed were not sufficiently strong to deter crimes in the colony. [2]

David Collins David Collins.jpg
David Collins

The judge-advocate was the presiding officer, and would do everything a normal judge would do. Unlike a judge, though, he was also one of the jury. This differed substantially from how criminal justice was administered in England. When the prisoner was brought before the court, the charge was read over to him or her, and he or she was called upon to plead. Witnesses were then examined for the Crown. The prosecution was not conducted by the judge-advocate. Instead, in line with the practice of Courts-martial in England, it was left in the hands of the person who had made the charge. [3] In contrast to the English situation, the prisoner was allowed to cross-examine the crown's witnesses. [4] The prisoner was left to conduct his defence without legal assistance. At the conclusion of the case, the Court was cleared, and the judge-advocate and the officers deliberated over their verdict. As soon as they reached their decision, the doors were opened again and the sentence was pronounced in public. In cases not involving the punishment of death, a verdict of the majority was sufficient. If the charge was a capital offence (and nearly every criminal charge in those days was capital) the concurrence of five members of the Court was necessary before the sentence could be carried out. Where fewer than five members of the court concurred, the proceedings had to be sent to the British Government for its consideration.

Punishment

The court was expressly limited to two forms of punishment. These were death, in capital cases, or flogging, in non-capital cases. Fines or imprisonment were not an option as there were no local gaols nor would prisoners have the money to pay a fine in the early days of the settlement. However, Phillip frequently sent prisoners for punishment to the islands in Sydney Harbour, and then subsequently to Norfolk Island when that penal colony was established. The Governor's warrant was a necessary preliminary to an execution; but he was empowered by his commission to grant a pardon in any case which was not treason or murder. He could also reprieve a prisoner until final instructions were received from England.

Differences between the court and courts-martial

While the Criminal Court was modelled on the basis of court-martial in England at the time, it was essentially different both in its constitution and its practice. The first and most important difference is the position of the judge-advocate. In England that office was always held by a lawyer whose duty it was to conduct the case for the prosecution and to advise the Court on legal points, especially points of evidence. They did not preside as a judge (as the court did in Sydney) and the judicial duties were performed by the president appointed to that particular court-martial. The role of judge advocate was therefore important, as the president of the court was usually a military officer not professionally qualified to deal with legal questions. Trial by court-martial in England was conducted according to the rules of the common law, and consequently the judge advocate was needed to advise on such matters of law as might arise before the tribunal. The judge advocate therefore had no voice or vote so far as the judgment of the Court was concerned. His function was to advise. He also acted as the prosecutor for the Crown, and was also supposed to assist the prisoner in his defence in the same manner that judges in normal criminal courts in those days were supposed to do. This process went some way to ensure a fair trial for the prisoner.

The judge-advocate of the New South Wales court created by the Letters Patent of 1787 issued by the British crown bore very little resemblance to the judge-advocate of the English courts. The first person appointed to the office was David Collins, who was a captain of marines. He was not in a position to discharge the duties of a legal adviser. The Court therefore administered the law without any legal assistance. An ordinary court-martial court could get by with the procedures established for it because the offences tried before it were simply breaches of military discipline. Punishment for such breaches were regulated by military law. Unfortunately, the New South Wales court was empowered to deal with the whole range of criminal offences, including both common law and statute law which then existed in England. Later judges appointed to the Supreme Court of New South Wales established nearly fifty years later were to experience similar difficulties in understanding the criminal law which applied in New South Wales.

Putting this aside, Collins was satisfied that "when the state of the colony and the nature of its inhabitants are considered, it must be agreed that the administration of public justice could not have been placed with so much propriety in any other hands." This is particularly apt as it would have been difficult to find a jury of twelve men at the time (most men in the colony being either military officers or convicts).

Related Research Articles

In most common law jurisdictions, the attorney general or attorney-general is the main legal advisor to the government. In some jurisdictions, attorneys general also have executive responsibility for law enforcement, prosecutions or even responsibility for legal affairs generally. In practice, the extent to which the attorney general personally provides legal advice to the government varies between jurisdictions, and even between individual office-holders within the same jurisdiction, often depending on the level and nature of the office-holder's prior legal experience.

<span class="mw-page-title-main">Court-martial</span> Judicial action in military forces

A court-martial or court martial is a military court or a trial conducted in such a court. A court-martial is empowered to determine the guilt of members of the armed forces subject to military law, and, if the defendant is found guilty, to decide upon punishment. In addition, courts-martial may be used to try prisoners of war for war crimes. The Geneva Conventions require that POWs who are on trial for war crimes be subject to the same procedures as would be the holding military's own forces. Finally, courts-martial can be convened for other purposes, such as dealing with violations of martial law, and can involve civilian defendants.

Military justice is the body of laws and procedures governing members of the armed forces. Many nation-states have separate and distinct bodies of law that govern the conduct of members of their armed forces. Some states use special judicial and other arrangements to enforce those laws, while others use civilian judicial systems. Legal issues unique to military justice include the preservation of good order and discipline, the legality of orders, and appropriate conduct for members of the military. Some states enable their military justice systems to deal with civil offenses committed by their armed forces in some circumstances.

The Courts of England and Wales, supported administratively by His Majesty's Courts and Tribunals Service, are the civil and criminal courts responsible for the administration of justice in England and Wales.

The court system of Canada is made up of many courts differing in levels of legal superiority and separated by jurisdiction. In the courts, the judiciary interpret and apply the law of Canada. Some of the courts are federal in nature, while others are provincial or territorial.

<span class="mw-page-title-main">Law of Singapore</span>

The legal system of Singapore is based on the English common law system. Major areas of law – particularly administrative law, contract law, equity and trust law, property law and tort law – are largely judge-made, though certain aspects have now been modified to some extent by statutes. However, other areas of law, such as criminal law, company law and family law, are largely statutory in nature.

<span class="mw-page-title-main">Judicial system of Finland</span> National court system of Finland

Under the Constitution of Finland, everyone is entitled to have their case heard by a court or an authority appropriately and without undue delay. This is achieved through the judicial system of Finland.

<span class="mw-page-title-main">District Court of New South Wales</span> Intermediate court of New South Wales

The District Court of New South Wales is the intermediate court in the judicial hierarchy of the Australian state of New South Wales. It is a trial court and has an appellate jurisdiction. In addition, the Judges of the Court preside over a range of tribunals. In its criminal jurisdiction, the Court may deal with all serious criminal offences except murder, treason and piracy. The Court's civil jurisdiction is generally limited to claims less than A$1,250,000.

<span class="mw-page-title-main">Ellis Bent</span> Australian judge

Ellis Bent was the Deputy Judge Advocate between 1810 and 1815 of the Australian colony of New South Wales, which was eventually to become an Australian state. The Deputy Judge Advocate of New South Wales was the senior legal officer of the colony and functioned in many ways as a Chief Justice. Bent was the first barrister to be appointed to a judicial office in the infant colony in an era when military officers were commonly appointed to the position.

The Court of Civil Jurisdiction was a court established in the late 18th century, in the colony of New South Wales which subsequently became a state of Australia. The court had jurisdiction to deal with all civil disputes in the then fledgling colony. It was in operation between 1788, the date of establishment of the new colony, and 1814.

The Governors Court was a court established in the early 19th century in the colony of New South Wales. The colony was subsequently to become a state of Australia in 1901. The court had jurisdiction to deal with civil disputes where the amount in dispute in the colony was not more than £50 sterling. The Supreme Court of New South Wales replaced the court in 1823 when the Supreme Court was created by the Third Charter of Justice.

The Lieutenant Governor's Court was a court established in the early 19th century in the colony of Van Diemen's Land which subsequently became Tasmania, a state of Australia. The court had jurisdiction to deal with civil disputes where the amount in dispute was not more than £50 sterling in the colony. The establishment of the court was the first practical civil court in the settlement. This was an important first step in improving the resolution of civil disputes in the settlement. The Supreme Court of Van Diemen's Land eventually replaced it in 1823 when the court's charter was revoked by the Third Charter of Justice.

The Supreme Court of Civil Judicature of New South Wales was a court established in the early 19th century in the colony of New South Wales. The colony was subsequently to become a state of Australia in 1901. The court had jurisdiction to deal with civil disputes where the amount in dispute in the colony was more than £50 sterling. The Supreme Court of New South Wales replaced the court in 1823 when the Supreme Court was created by the Third Charter of Justice.

Richard Dore (1749–1800) was an attorney, deputy judge advocate and secretary to the governor of the Colony of New South Wales, Australia in the late 18th century. He was the second person to hold office as deputy judge advocate, a position akin to the position of chief justice in the colony, and the first legally qualified person to do so. Author Robert Hughes described Dore as a "blundering and cantankerous incompetent, much given to petty graft". In reality, he was probably no worse than other deputy judge advocates who served before or after him.

The Vice Admiralty Court was a prerogative court established in the late 18th century in the colony of New South Wales, which was to become a state of Australia. A vice admiralty court is in effect an admiralty court. The word "vice" in the name of the court denoted that the court represented the Lord Admiral of the United Kingdom. In English legal theory, the Lord Admiral, as vice-regal of the monarch, was the only person who had authority over matters relating to the sea. The Lord Admiral would authorize others as his deputies or surrogates to act. Generally, he would appoint a person as a judge to sit in the Court as his surrogate. By appointing Vice-Admirals in the colonies, and by constituting courts as Vice-Admiralty Courts, the terminology recognized that the existence and superiority of the "mother" court in the United Kingdom. Thus, the "vice" tag denoted that whilst it was a separate court, it was not equal to the "mother" court. In the case of the New South Wales court, a right of appeal lay back to the British Admiralty Court, which further reinforced this superiority. In all respects, the court was an Imperial court rather than a local Colonial court.

The Children's Court of Victoria is a statutory court created in Victoria, Australia. The court deals with criminal offences alleged to be committed by children aged between 10 and 17 and with proceedings concerning children under the age of 17 relating to the care and protection of children.

<span class="mw-page-title-main">Courts of South Africa</span>

The courts of South Africa are the civil and criminal courts responsible for the administration of justice in South Africa. They apply the law of South Africa and are established under the Constitution of South Africa or under Acts of the Parliament of South Africa.

<span class="mw-page-title-main">Military courts of the United Kingdom</span>

The military courts of the United Kingdom are governed by the Armed Forces Act 2006. The system set up under the Act applies to all three armed services: the Royal Navy (RN), the British Army, and the Royal Air Force (RAF), and replaces the three parallel systems that were previously in existence.

The Judge Advocate General's Corps is the military justice branch or specialty of the United States Air Force, Army, Coast Guard, Marine Corps, and Navy. Officers serving in the JAG Corps are typically called judge advocates.

<span class="mw-page-title-main">Courts of Guernsey</span> Court system of Guernsey

The Courts of Guernsey are responsible for the administration of justice in the Bailiwick of Guernsey, one of the Channel Islands. They apply the law of the Island, which is a mixture of customary law dating back as far as the 10th century and legislation passed by the legislature, the States of Deliberation.

References

  1. "Judge Advocate of New South Wales". State Records. Government of New South Wales. Archived from the original on 1 April 2015. Retrieved 28 April 2015.
  2. An Account of the Colony of New South Wales p. 27.
  3. Tench, A Narrative on the Colony of New South Wales, p. 70.
  4. Castle, A Legal History of Australia, Chapter 4.

Sources