AGY-35 | Clerk of the Peace (1817-1980) Solicitor for Public Prosecutions and Clerk of the Peace (1980-1987)

Full description

Government and General Orders dated 1 January 1817 advised that the Governor had appointed Thomas Wylde to the new position of Clerk of the Peace in New South Wales. (1) This appointment was approved by Earl Bathurst in a letter dated 29 August 1818. (2).

The Clerk of the Peace was an officer of the Court of Criminal Jurisdiction, whose duties were principally to prepare information on the basis of depositions taken by magistrates after the Judge Advocate had examined them, to ascertain whether sufficient grounds for prosecution existed, and to read the indictments in court. (3) The office lapsed in 1821 following the death of Thomas Wylde.

On 1 November 1824, Frederick Garling, the Crown Solicitor was also appointed Clerk of the Peace. (4) In addition to his duties of preparing information, the Clerk of the Peace was charged with the duty of acting as Crown Prosecutor at Quarter Sessions. From the 1830s onwards the Clerks of the Peace were appointed in country districts where Quarter Sessions were held, for example Clerks of the Peace were appointed at Maitland on 1 August 1836 and at Bathurst on 28 November 1836.(5) In January 1870 Archibald Colquhoun Fraser was appointed Clerk of the Peace for the entire colony was appointed with power to appoint deputies from among District Court Registrars and Clerks of Petty Sessions in areas where Quarter Sessions were held. (6)

The Clerk of the Peace was responsible for prosecutions in criminal matters, instructing the Attorneys to the Crown in indictable crimes and handling appeals in Crown matters. For this reason he had to have the relevant papers and became in effect the de facto Registrar of the Supreme Court in its Criminal Jurisdiction as well as being the Registrar of Quarter Sessions to 1973 (subsequently the District Court in its Criminal and Special Jurisdictions). (7)

The Prothonotary of the Supreme Court retained only the criminal indictments and issued jury precepts while the Clerk of the Peace carried out most of the duties of a registry such as listing, issuing of notices.

The change of title from Clerk of the Peace to 'Solicitor for Public Prosecutions and Clerk of the Peace', which took effect on 1 January 1980 (8), reflected the importance of this official's role as solicitor for the Crown on criminal prosecutions.

The Director of Public Prosecutions Act, 1986 ( Act No.207, 1986) (9) appointed a Director of Public Prosecutions to institute and conduct Crown proceedings. Under this Act the Director could appoint Deputy Directors of Public Prosecutions (10) and a Solicitor for Public Prosecutions. (11)

The Criminal Procedure Act, 1986 (Act No.209, 1986) (12) abolished the office of the Clerk of the Peace, and the District Court (Amendment) Act 1986 (Act No.210, 1986) (13) appointed Registrars and Assistant Registrars to replace the Clerks of the Peace.

Endnotes
1. HRA Series 1, Vol. IX p.329.
2. Ibid., p.835.
3. HRA Series IV, Vol. I, p.841.
4. Returns of the Colony of NSW 1825 (4/253).
5. Returns of the Colony of NSW, 1836 p.100 (4/258).
6. NSW Government Gazette 14 January, 1870 p.79.
7. Concise Guide.
8. NSW Public Service Notices. 16/01/1980, p.2, Ibid., p.483.
9. Assented to 23 December 1986, New South Wales Government Gazette, Vol. 1, 30 January 1987, p.483.
10. Public Prosecutions Act 1986, s. 5.
11. Public Prosecutions Act 1986, s. 6.
12. Assented to 23 December 1986, New South Wales Government Gazette No.20, 30 January 1987, p.483.
13. Assented to 23 December 1986, New South Wales Government Gazette No.20, 30 January 1987, p.483.


REFERENCES
(1) "Concise Guide" 2nd Edition. "A - Cl", "Clerk of the Peace", p.48.
(2) "Outline", 1966 - 1976.