AGY-1065 | Criminal Division [Supreme Court of New South Wales]

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The Criminal Division of the Supreme Court of New South Wales was established by the New South Wales Act (4 George IV Act No. 96) The most serious criminal offences, including all crimes where capital punishment could be the penalty, were heard before the Judges of the Supreme Court. Between 1835 and the first part of 1836 333 criminal cases came before the Court. The three Judges were heavily involved in trying these cases, dealing with points of law that arose, and sentencing those convicted. To add to the judicial burdens, criminal trials were also beginning to become more complex as barristers appeared more frequently for defendants. The normal English practice of allowing legal participation on behalf of the defence in criminal trials had been adopted from the introduction of the criminal jurisdiction of the Supreme Court in 1824. In England it was not until the passing of the Prisoners' Counsel Act, 1836, that barristers were admitted formally to participate in trials of persons indicted for felonies. This Act was not adopted in New South Wales until passing of the Counsel Act, 1840,(4 Vic. Act No. 27). The Supreme Court's initial legal basis for criminal trials flowed from the English Criminal Law Adopted Acts - (9 Geo.IV, Act No.1) (Acts for improving the administration of justice in England 7 Geo. 4 c. 64, 7 & 8 Geo. 4 c.27 to 30) and the English Arrests Act Adopted (9 Geo.IV, Act No.1) (An Act to prevent Arrests upon Mesne Process where Debt or Cause of Action is under Twenty Pounds and to regulate the Practice of Arrests). In 1840 the use of military jurors for the trial of criminal offences in the Supreme Court (and in Courts of Quarter Sessions) was discarded in favour of civilian juries. (2) "An Act for the removal of Defects in the Administration of Criminal Justice", 1849 (13 Vic., Act No. 7) allowed accessories before the fact to any felony to be punished in the same degree as the principal felon. (1) Also any person who became an accessory after the fact to a felony could be tried at a latter date without regard to the trial of the principal felon. (3) Under "An Act to provide for the reservation and decision of points of Law in Criminal Cases", 1849 (13 Vic., Act No. 8) questions of law raised in a criminal trial by Counsel or having arisen as the matter proceeded could be set aside for later consideration. Once a legal ruling had been made it was transmitted to the Judges of the Supreme Court for certification. (4) The Supreme Court Judges had "full power and authority to hear and finally determine the said question" leading to the affirmation, amendment, or reversal of the lower court's decision. Amendment or reversal of a decision required certificates "under the hand of the Prothonotary" firstly for the Clerk of the Peace to amend the "original record" and secondly for the Sheriff or Gaoler to either amend their custodial record or release the person. (5) In 1852 all Judges and Justices were given the power to direct that a prosecution be commenced against any person guilty of "wilful and corrupt perjury in any evidence given or in any affidavit, deposition, examination answer or other proceeding". (6) "An Act to regulate the Execution of Criminals" 1853 (17 Vic., Act No. 41) within the walls of a prisons required two certificates of death to be sent to the Prothonotary of the Supreme Court. The Medical officer signed the first certificate, while the second took the signatures of the Sheriff, Deputy Sheriff, Gaoler, Turnkey, Constables, Magistrates, and other spectators. Each certificate became a record of the Supreme Court and was also published in the Government Gazette on two separate occasions. Both the Criminal Law Amendment Act 1883, (46 Vic., Act No. 17) and the Crimes Act, Act, 1900 (Act No. 40, 1900) carried the provision that the Supreme Court was to carry into effect any sentence flowing from a court martial of any soldier, seaman, or marine. (7) The Judges of the Common Law Division preside over the trial of serious criminal charges such as murder, manslaughter, attempted murder and major conspiracy and drug cases as well as Commonwealth prosecutions under the Corporations Law. There are assigned to the Criminal Division proceedings in the Court under the Crimes Act, 1900 (Act No. 40, 1900) and the Mental Health (Criminal Procedure) Act, 1990 (Act No. 10) 1990 FOOTNOTES (1) "An Act for the removal of Defects in the Administration of Criminal Justice", 13 Vic., No. 7 1849 Section 1. (2) Castles Alex C., An Australian Legal History, The Law Book Company Limited, Sydney 1982, page 203. (3) Op. cit. Section 2. (4) "An Act to provide for the reservation and decision of points of Law in Criminal Cases", 13 Vic., No. 8 1849 (5) Ibid. Section 2. (6) "An Act for further improving the Administration of Criminal Justice" 16 Vic., No. 18, 1852 Section 19. (Commencement of Act - 1 September 1852). (7) Criminal Law Amendment Act 1883, 46 Vic., No. 17 Section 381 & Crimes Act, Act No. 40 1900 Section 458. REFERENCES Supreme Court Rules