Convict Guide - published 2006 - Manual / Resource - Page 118
Guide to New South Wales State archives relating to convicts and convict administration
Court of Criminal
Jurisdiction
Major crimes were heard before the Court of Criminal Jurisdiction, which
was presided over by the Judge Advocate and was composed of six
naval or military officers appointed by the Governor. The Court was
given authority to try all cases deemed as criminal offences under the
common law of England. A majority vote was sufficient for conviction
except in capital cases, where unless five members of the court held the
accused guilty, the matter was referred to the Governor. For other
offences the court could impose corporal punishment, or sentence to a
road gang, or penal settlement.
Court of Civil
Jurisdiction
There was also a Civil Court from which, as was the case with the Court
of Criminal Jurisdiction, juries were excluded. Opposition to this
omission emerged during the Macquarie era. Commissioner Bigge
investigated the matter and, in 1823, following the appearance of his
Reports, an Act for 'the Better Administration of Justice in New South
Wales and Van Diemen's Land', was passed by the English Parliament.
Supreme Court
This measure was accompanied by a Charter of Justice which set up a
Supreme Court and a number of lesser courts more in keeping with the
English system. (Melbourne, Early Constitutional Development,
pp.121ff). These changes were followed by the establishment, or
expansion, of such public service agencies as the Attorney General,
Clerk of the Peace and the Sheriff as well as the various offices attached
to the Supreme Court. A Supreme Court (Civil Jurisdiction) had existed
since 1814 but a new body with increased powers and an expanded role
was brought into being in 1823.
The Court was the highest legal authority in the colony and was vested
with criminal as well as civil jurisdiction. It was the only court which
could try cases punishable by death, such as murder. It was opened on
1 May 1824 under the first Chief Justice, Francis Forbes, who had been
appointed on 4 August 1823. A member of the Legislative, and later the
Executive, Council he also determined how the law should be applied.
His presence, together with that of the Supreme Court provided a
safeguard against arbitrary authority. (Melbourne, Constitutional
Development, pp.100-101).
Trial by jury
The 1823 Act made allowance for the use of juries in civil cases where
both parties were agreed, but no provision was made for trial by jury in
the Criminal Court. This aroused criticism from the political faction
known variously as 'Emancipists', or 'Botany Whigs', which had formed
around William Charles Wentworth. (Melbourne, Early Constitutional
Development, pp.127ff).
During the 1820s this group pressed for representative government and
trial by jury, both of which they considered their right as British
subjects. They were opposed by the 'Exclusives' who centred around
John Macarthur, by government officials and by the British Government
which was reluctant to introduce such changes in a penal colony.
New South Wales had to await the ending of convict transportation
before representative government was introduced, but a new Act in
1828 allowed juries in civil cases at the discretion of the judge where
either party requested this concession. (Melbourne, Early Constitutional
Development, pp.152-64). Further change was left to the colonial
government which under Governor Bourke accepted the need for
reform. (King, Governor Bourke, pp.157-60). Changes were introduced
in the Civil Court and in 1833 the Colonial Act 4 Will. IV no.12 allowed
accused persons in criminal cases the choice of a jury of twelve civilians
or seven military officers. In 1839 the Act 3 Vic. No.11 abolished
military juries entirely.
State Records Authority of New South Wales
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