An Act Constituting a Court of Criminal Judicature in New South Wales, 1787 begins by reciting the provisions of An Act for the effectual transportation of felons and other offenders; and to authorise the removal of prisoners in certain cases, 1784 (24 Geo III c 56, referred to as The Transportation Act). The abridged text of this Act is available in: J M Bennett & A C Castles, A Source Book of Australian legal history : source materials from the eighteenth to the twentieth centuries, 1979:Law Book Co, Sydney, pp 3 – 5.
The Transportation Act authorised His Majesty “to appoint any place or places beyond the seas, either within or without His Majesty’s Dominions to which offenders so sentenced shall be conveyed”. The Colony of New South Wales, which in 1787 included all of the east coast of Australia as well as Van Diemen’s Land, was appointed to be such a place. When Van Diemen’s Land was settled in 1803, it was a dependency of the Colony of New South Wales, and subject to the provisions of the 1787 Act and the accompanying Charter of Justice.
The 1787 Charter (First Charter) contained recitals expressing it to have effect in pursuance of the 1784 Transportation Act and two 1786 Orders in Council, and with regard to the Court of Criminal Jurisdiction, in pursuance of the 1787 Act (27 Geo III c 2). The Court of Civil Jurisdiction, constituted by the Charter, had no statutory foundation but was a creature of the royal prerogative.
One of the major critics of the First Charter was Deputy Judge Advocate Bent. In a letter to Under Secretary Cooke on 7 May 1810 he complains that the Criminal Jurisdiction of the Colony is imperfect in every point of view. He points out that that the greatest defect is the variety of duties the Judge Advocate has to perform:
In the first instance, he is obliged to prepare and examine the evidence for the prosecution … he then has to draw up the indictment, of the legality of which he then has to judge, and it is by him to be exhibited to the court …
He goes on to say that the execution of all these duties “is apt to bias the mind” in carrying out his role as Judge Advocate. Simply put, the court “was very well calculated to answer the purposes for which it was created in the infant state of the colony” but increases in population and trade have made it “very deficient in many respects”.
In response to these and similar views and opinions the House of Commons appointed a Select Committee to inquire into the effectiveness of sentences of transportation and other matters. The 1812 Report of the Committee resulted in significant proposals for reforming the judicature in the colony.
As the changes proposed by the Committee only related to civil courts it was not considered necessary to create any legislation to carry them out. Rather they were the subject of letters patent, now known as the Second Charter of Justice.
While the provisions of the second Charter proved beneficial to the courts in Sydney, they did very little to improve the administration of justice in Van Diemen’s Land. Judge Advocate Bent, in a letter to Lord Bathurst in October 1814, pointed out that while the establishment of the Lieutenant Governor’s Court did provide some relief, the lack of a Court of Criminal Jurisdiction and a Court of Civil Jurisdiction, with sufficiently extensive powers, was deplorable.
Judge Advocate Wylde, in a letter to Under Secretary Goulbourn on 31 March 1817 felt it his duty to point out the Charter, in regard to the jurisdiction of the Supreme Court (based in Sydney) would soon be found to be altogether insufficient for the inhabitants of Van Diemen’s Land due to delays, heavy expenses, personal inconveniences and losses, and communication difficulties that were incurred when having to travel to Sydney to have their cases heard.
From 1819 to 1823 Chief Justice Barron Field and Judge Advocate Wylde both made two visits to Hobart to hear civil and criminal matters but this was never going to be a successful solution for the Island dependency.
In his 1823 Report on the Judicial Establishments of New South Wales and Van Diemen’s Land, Commissioner Thomas Bigge clearly spelled out the problem, and proposed solution:
The evils, however, arising to the settlement from the unchecked commission of crime, and from the extensive schemes of plunder in which the remitted convicts and those whose terms of service had expired were thus tempted to engage, together with the temptation to personal redress of civil injuries that is held out to the free inhabitants, as well as strangers, from the distance and long absence of any controlling judicial authority, I consider to be very clearly established; and as these evils admit of very partial and insufficient correction from the occasional and annual circuit of the judges … I have no difficulty in recommending to your Lordship the early establishment of a separate civil and criminal judicature in Van Diemen’s Land, as a measure essential to its tranquillity and to the prosperity of its inhabitants.
It was time for a new Act and a new Charter.