The First Charter of Justice( Act 27 Geo.III c.2 (1787) authorized the King to erect a Court of Criminal Jurisdiction in New South Wales. The Letters Patent (or Charter of Justice) of 1787 so issued provided that the Court should be a Court of Record presided over by the Judge Advocate of the Colony, together with six naval or military officers appointed by the Governor, with the authority to try all criminal causes which were offences under the law of England. A majority vote of the Court was sufficient for conviction except in capital cases, where unless five members of the Court held the accused guilty, the matter was reserved for Royal decision. In composition and procedure the Court of Criminal Jurisdiction resembled a court martial. The only sentences the Court could inflict were death for capital offences and corporal punishment (ordinarily by flogging, sometimes by close confinement) for all others.
The Governor (or Lieutenant Governor) was to ratify all capital sentences. In the event of the Governor (or Lieutenant Governor) suspending a capital sentence, the case was to be referred to England. (1)
It was in fact an exceptional tribunal for an unusual situation. Lord Camden had written to Pitt in 1787 that the population of the projected convict settlement at Botany Bay were "not of the proper stuff to make juries". He had, however, added that if the Colony thrived then a jury system should be adopted. (2)
Charges against the accused were reduced to writing and exhibited in Court by the Judge-Advocate who thus acted as Crown prosecutor.
To overcome the difficulty of transporting prisoners between Norfolk Island and Sydney for trial, An Act to Enable His Majesty to Establish a Court of Criminal Jurisdicture in Norfolk Island' (34 Geo.III, c.45 - Imperial) received assent on 9 May 1794. The Court consisted of a Judge Advocate in Norfolk Island and four officers of the navy or military. (3)
The absence of a superior court in Van Diemen's Land necessitated serious cases being heard Sydney at considerable cost and inconvenience. This resulted in many cases not proceeding to litigation. Free persons there were not tried for crimes in the Van Diemen's Land although they were bailed in the Colony, but convicts were summarily tried for all offences except murder. (4)
On 10 January 1821, the Deputy Judge Advocate travelled from Sydney to Tasmania to hold a Circuit Court. (5)
The Court of Criminal Jurisdiction was abolished in 1824, when the Charter of Justice issued under the provisions of the New South Wales Act 1823 (Act 4 Geo.IV c.96 ), establishing a Supreme Court with both civil and criminal jurisdictions was proclaimed.
(1) Bennett J. M., A History of the New South Wales Bar, The Law Book Company, Sydney, 1969, p.5.
(2) Historical Records of Australia, Series IV, Volume I, pp. 10-11.
(3) Historical Records of Australia, Series IV, Volume I, pp.24-5.
(4) Robson, Lloyd, A History of Tasmania Volume I Van Diemen’s Land from the Earliest Times to 1855, Oxford University Press, Melbourne, 1983, p. 118.
(5) Historical Records of Australia, Series IV, Volume I, p.939.
(1) Historical Records of Australia, Series IV, Volume 1.
(2) Second Report of the Commissioner of Inquiry on the Judicial Establishments of New South Wales and Van Diemen’s Land, 1823.