From 1788 to 1823 criminal cases in the Colony of New South Wales were heard in the Court of Criminal Jurisdiction. Established through the First Charter of Justice as a court of record, its powers and functions were regulated by the New South Wales Act 1787. Its members consisted of a Judge Advocate and at least six officers of the armed services, and its judgments were carried out by a Provost Marshall. The composition and procedures of the Court were like those of a Court Martial and there only two sentencing options, death for capital offences and corporal punishment (flogging or close confinement) for all others.
However, despite its military appearance, the Criminal Court was a civil court, applying English criminal law and procedures, as set out in the 1787 Act, but with variations from English methods of trial and indictment to allow for the fact that the Colony was a place where ‘convicts shall be transported’.
The Act laid down that the Court would proceed ‘in a more summary way’ than in England: there would be no trial by jury, the Judge Advocate and the military officers were the sole triers of fact and law, verdicts did not have to be unanimous and there could be no appeal against conviction. However, Governor Phillip and his successors were granted authority to pardon and reprieve prisoners who had received the death penalty.
Apart from a short-lived tribunal on Norfolk Island the Court of Criminal Jurisdiction was the only court in the Colony of New South Wales that could hear serious criminal offences. As the Colony expanded, particularly in the settlements in Van Diemen’ Land from 1803 onwards, the ability of the Criminal Court to provide adequate access for the inhabitants of Van Diemen’s Land to the criminal justice system declined. Witnesses were generally unwilling to undertake the hazardous sea journey to Sydney and as Commissioner Bigge pointed out in his 1823 Report on the Judicial Establishments of New South Wales and Van Diemen’s Land, they also feared the ‘expense, trouble and delay involved in the trip’ and as a result ‘compromises of the worst crimes have taken place for the purpose of avoiding that expense as well as certain ruin that would have followed the absence of the owner from his property’.
In Van Diemen’s Land convicts appeared before Justices of the Peace for all offences except murder, and at times local officials took the law into their own hands: a free woman had a spiked collar fitted to her neck for an alleged infringement, another woman was flogged through Hobart Town for using abusive language, and a magistrate ordered that a blacksmith should be flogged for daring to present his bill.
Examples of corruption, favouritism, excessive punishments and unfair bias can be found throughout the 36 years of the Court’s history. However, while the criminal law, as it was applied in the Colony of New South Wales from 1788 to 1823, appears at times to be particularly brutal, it needs to be acknowledged that it was generally just an extension of the operation of the criminal law in England. Also up to 1816 none of the officials responsible for enforcing the laws were lawyers.
Alex Castles, An Australian Legal History, 1982 Sydney Law Book Co
______ Lawless Harvests, 2007 North Melbourne, Australian Scholarly Publishing
Bruce Kercher and Brent Salter Resurrecting our first Superior Courts: reporting the law of Colonial New South Wales
A series of links to information about records of the Court of Criminal Jurisdiction 1788-1823, held by the State Archives and Records Authority of New South Wales, points the way towards the location of primary resource material relevant to the Court
Decisions of the superior courts of New South Wales 1788 – 1899 (includes some decisions for Van Diemen’s Land) Search years 1788-1823
Superior Courts of New South Wales (AustLII) Database) Search years 1788-1823