Court of Criminal Jurisdiction
Encyclopedia
The Court of Criminal Jurisdiction was a criminal court established in 1787 under the auspices of the First Charter of Justice in the British Empire 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
.
was appointed as the colony's first governor.
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.
, 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.
. The court had virtually unlimited powers to deal with criminal offences. The court was constituted by a Deputy Judge Advocate, or as the office came to be more commonly called, “Judge-Advocate”. He sat with six military officers to constitute the tribunal. The first deputy judge advocate was David Collins
.
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.
; instead, it was a plain statement of the offence committed. Lawyer
s 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.
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. In contrast to the English situation, the prisoner was allowed to cross-examine the crown's witnesses. 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.
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.
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).
New South Wales
New South Wales is a state of :Australia, located in the east of the country. It is bordered by Queensland, Victoria and South Australia to the north, south and west respectively. To the east, the state is bordered by the Tasman Sea, which forms part of the Pacific Ocean. New South Wales...
, now a state of Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
. 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
Supreme Court of New South Wales
The Supreme Court of New South Wales is the highest state court of the Australian State of New South Wales...
.
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 PhillipArthur Phillip
Admiral Arthur Phillip RN was a British admiral and colonial administrator. Phillip was appointed Governor of New South Wales, the first European colony on the Australian continent, and was the founder of the settlement which is now the city of Sydney.-Early life and naval career:Arthur Phillip...
was appointed as the colony's first governor.
Justice of the Peace
A justice of the peace is a puisne judicial officer elected or appointed by means of a commission to keep the peace. Depending on the jurisdiction, they might dispense summary justice or merely deal with local administrative applications in common law jurisdictions...
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 TasmaniaTasmania
Tasmania is an Australian island and state. It is south of the continent, separated by Bass Strait. The state includes the island of Tasmania—the 26th largest island in the world—and the surrounding islands. The state has a population of 507,626 , of whom almost half reside in the greater Hobart...
, then called Van Diemen's Land
Van Diemen's Land
Van Diemen's Land was the original name used by most Europeans for the island of Tasmania, now part of Australia. The Dutch explorer Abel Tasman was the first European to land on the shores of Tasmania...
, Victoria
Victoria (Australia)
Victoria is the second most populous state in Australia. Geographically the smallest mainland state, Victoria is bordered by New South Wales, South Australia, and Tasmania on Boundary Islet to the north, west and south respectively....
, Queensland
Queensland
Queensland is a state of Australia, occupying the north-eastern section of the mainland continent. It is bordered by the Northern Territory, South Australia and New South Wales to the west, south-west and south respectively. To the east, Queensland is bordered by the Coral Sea and Pacific Ocean...
, South Australia
South Australia
South Australia is a state of Australia in the southern central part of the country. It covers some of the most arid parts of the continent; with a total land area of , it is the fourth largest of Australia's six states and two territories.South Australia shares borders with all of the mainland...
, the Northern Territory
Northern Territory
The Northern Territory is a federal territory of Australia, occupying much of the centre of the mainland continent, as well as the central northern regions...
, the Australian Capital Territory
Australian Capital Territory
The Australian Capital Territory, often abbreviated ACT, is the capital territory of the Commonwealth of Australia and is the smallest self-governing internal territory...
, and of the course the current state of New South Wales
New South Wales
New South Wales is a state of :Australia, located in the east of the country. It is bordered by Queensland, Victoria and South Australia to the north, south and west respectively. To the east, the state is bordered by the Tasman Sea, which forms part of the Pacific Ocean. 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
Sydney
Sydney is the most populous city in Australia and the state capital of New South Wales. Sydney is located on Australia's south-east coast of the Tasman Sea. As of June 2010, the greater metropolitan area had an approximate population of 4.6 million people...
for trial, or dealt with summarily in Hobart
Hobart
Hobart is the state capital and most populous city of the Australian island state of Tasmania. Founded in 1804 as a penal colony,Hobart is Australia's second oldest capital city after Sydney. In 2009, the city had a greater area population of approximately 212,019. A resident of Hobart is known as...
. The court also had jurisdiction to deal with offences in the colony of Norfolk Island
Norfolk Island
Norfolk Island is a small island in the Pacific Ocean located between Australia, New Zealand and New Caledonia. The island is part of the Commonwealth of Australia, but it enjoys a large degree of self-governance...
, 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
The court was a statutory court established under an act of the British ParliamentParliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
. The court had virtually unlimited powers to deal with criminal offences. The court was constituted by a Deputy Judge Advocate, or as the office came to be more commonly called, “Judge-Advocate”. He sat with six military officers to constitute the tribunal. The first deputy judge advocate was David Collins
David Collins (governor)
Colonel David Collins was the first Lieutenant Governor of the Colony of Van Diemens Land, founded in 1804, which in 1901 became the state of Tasmania in the Commonwealth of Australia.-Early life and military career:...
.
In its early days, the court was convened when required. It was convened following a precept
Precept
A precept is a commandment, instruction, or order intended as an authoritative rule of action.-Christianity:The term is encountered frequently in the Jewish and Christian Scriptures; e.g.:...
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 indictmentIndictment
An indictment , in the common-law legal system, is a formal accusation that a person has committed a crime. In jurisdictions that maintain the concept of felonies, the serious criminal offence is a felony; jurisdictions that lack the concept of felonies often use that of an indictable offence—an...
; instead, it was a plain statement of the offence committed. Lawyer
Lawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
s 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
Rule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
. 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.
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
. 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
Court-martial
A court-martial is a military 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.Most militaries maintain a court-martial system to try cases in which a breach of...
in England, it was left in the hands of the person who had made the charge. In contrast to the English situation, the prisoner was allowed to cross-examine the crown's witnesses. 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
Capital punishment
Capital punishment, the death penalty, or execution is the sentence of death upon a person by the state as a punishment for an offence. Crimes that can result in a death penalty are known as capital crimes or capital offences. The term capital originates from the Latin capitalis, literally...
, 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 IslandNorfolk Island
Norfolk Island is a small island in the Pacific Ocean located between Australia, New Zealand and New Caledonia. The island is part of the Commonwealth of Australia, but it enjoys a large degree of self-governance...
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
Pardon
Clemency means the forgiveness of a crime or the cancellation of the penalty associated with it. It is a general concept that encompasses several related procedures: pardoning, commutation, remission and reprieves...
in any case which was not treason
Treason
In law, treason is the crime that covers some of the more extreme acts against one's sovereign or nation. Historically, treason also covered the murder of specific social superiors, such as the murder of a husband by his wife. Treason against the king was known as high treason and treason against a...
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
David Collins
-People:* David Collins , 18th-century cricketer associated with Hampshire* David Collins , played for Wellington and Cambridge University...
, who was a captain of marines
Royal Marines
The Corps of Her Majesty's Royal Marines, commonly just referred to as the Royal Marines , are the marine corps and amphibious infantry of the United Kingdom and, along with the Royal Navy and Royal Fleet Auxiliary, form the Naval Service...
. 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
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
and statute law which then existed in England. Later judges appointed to the Supreme Court of New South Wales
Supreme Court of New South Wales
The Supreme Court of New South Wales is the highest state court of the Australian State 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).
Sources
- History of New South Wales From the Records, Volume 1 - Governor Phillip 1783-1789 by G. B. Barton – Published 1889
- Alex CastlesAlex CastlesAlexander "Alex" Cuthbert Castles was an Australian historian and author who specialized in Australian legal history. He is the author of a number of published books in Australia as well as the author of numerous articles written for various journals.Castles was born in Melbourne, Australia...
, A Legal History of Australia, Law Book Co, 1975. - Watkin TenchWatkin TenchLieutenant-General Watkin Tench was a British Marine officer who is best known for publishing two books describing his experiences in the First Fleet, which established the first settlement in Australia in 1788...
, A Complete Account of the Colony of New South Wales, http://www.gutenberg.org/etext/3534 - David CollinsDavid Collins-People:* David Collins , 18th-century cricketer associated with Hampshire* David Collins , played for Wellington and Cambridge University...
, An Account of the English Colony in New South Wales, Volume 1, With Remarks on the Dispositions, Customs, Manners, Etc. of The Native Inhabitants of That Country. to Which Are Added, Some Particulars of New Zealand http://www.gutenberg.org/etext/12565