New South Wales
English law arrived on Australian shores in 1788 when New South Wales was established as a penal colony. On the 7th of February, before an audience of convicts and officials, Governor Arthur Phillip read out the formal proclamation of the Act of Parliament and the First Charter of Justice for New South Wales. This document established the colony’s jurisdiction from Cape York in the north to the most southerly tip of Van Diemen’s Land. It also established the colony’s first courts. Section 2 of the New South Wales Act 1787 allowed for the formation of a Court of Criminal Jurisdiction. However, the Act prescribed major variations from the English methods of trial and indictment due to the new colony’s role as a penal settlement.
New South Wales was the parent colony for the later settlements at Van Diemen’s Land (Tasmania), Port Phillip (Victoria) and Moreton Bay (Queensland). These settlements became colonies in their own right as their respective populations grew and agitated for their own political identities. However, many of the significant developments in the criminal prosecution process in New South Wales were retained by these jurisdictions after separation, rendering the colony’s early judicial history of particular importance.
The New South Wales penal colony was established under military law rather than the common law by which the convicts were convicted and sentenced to transportation. The Governor was the sole arbiter of authority, whose power was checked only by his supervisors in London. In practice, it might be almost two years before the Governor received imperial approval (or disapproval) for decisions made during his tenure.
The Court of Criminal Jurisdiction was the first criminal court in the colony and adjudicated all serious criminal cases until 1824. It was the express intention of the 1787 Act that procedures for criminal trials in the colonies, including indictments and prosecution, should not follow that of English courts. For example, the Act invested the Governor, the Lieutenant-Governor and a Judge-Advocate with the responsibilities of ex-officio justices of the peace. The Deputy Judge Advocate instigated and carried out the prosecutions.
In essence it was a military court. The Judge-Advocate and six military officers were the sole triers of both fact and law. In line with military tribunals, the Judge-Advocate could be overruled on matters of law. Further, as a military officer he was himself beholden to instructions from his superiors. Unlike the English criminal courts, verdicts were not required to be unanimous. Guilt was determined by a majority of four; five, if the case involved a capital offence.
There was much controversy and criticism regarding the court that went beyond its divergence from typical legal principles of the rule of law and due process. The Governor was responsible for appointing military officers, a process that raised concerns about their impartiality towards the accused given that the officers’ careers were usually dependant on the Governor’s recommendations.
Certainly, military officers were accused of bias and a perceived lack of impartiality pertaining to cases involving defendants or victims from their own class. Emancipated convicts were particularly concerned about prejudice from those who had once been their gaolers. Justice in general was often a harsh affair in the colony; in 1813, for instance, a 15-year-old boy said to suffer from ‘mental imbecility’ was sentenced to five years imprisonment and six months solitary confinement for shooting at another boy with a musket.
As early as 1812, a Committee Report from the House of Commons raised concerns about the biased nature of criminal trials in New South Wales. Within a generation of the colony’s settlement, emancipated convicts, the colonial born and some free settlers began agitating for reform and recognition of their legal rights.
While many Emancipists (emancipated convicts) and their children were in favour of the introduction of civilian juries to adjudicate cases, the more upper-crust free settlers or ‘Exclusives’ were not. Commissioner John Bigge was despatched from England to investigate the judicial arrangements of the colony, and its administration more generally, in 1819. While Bigge’s sympathies lay with the Exclusives, he concluded that some reform of the criminal jurisdiction of the colony was necessary. This eventually led to the introduction in 1823 of the Act for the Administration of Justice in New South Wales and Van Diemen’s Land.
The Supreme Court is central to the administration of justice in each State and Territory in Australia. The Supreme Court of New South Wales was enacted by statute in 1823. The penal criminal court was abolished, and Judge-Advocates were replaced with Supreme Court judges who were granted the same civil and criminal jurisdiction as English judges who sat on the King’s Bench, Common Pleas and the Exchequer. Whilst expressly based on the English court system, the new Supreme Court avoided the overlapping complexity of the English court hierarchy and created a court structure that represented from the outset a more modern streamlined system of court administration. The Court had extensive criminal jurisdiction over felonies, treasons, and misdemeanours committed by free settlers, and from 1836, indigenous peoples, and indictable capital offences for convicts. Under the direction of the Chief Justice, the Supreme Court also supervised the lower courts.
The Charter of Justice establishing the Supreme Court of New South Wales was proclaimed in Sydney on 17 May 1824. The proclamation was read out in the Georgian School in Elizabeth Street opposite the partly completed Supreme Court building. At the ceremony the oath of office was administered to the newly-appointed Attorney-General, Saxe Bannister. Solictor John Gurner was sworn in as the Registrar of the Supreme Court and pastoralist Joshua John Moore was sworn in as court Prothonotary (the post would be abolished the following year). Chief Justice Sir Francis Forbes, who had arrived in Sydney to take up this judgeship in March, announced that applications for permission to practice law in the Supreme Court would be received two days hence.
On 10 June 1824 the first Supreme Court of Criminal Jurisdiction was held. The first case to be tried was that of Michael Murphy and John Sullivan for the wilful murder of William Byrne. The case rested largely on the testimony of Mrs Catherine Bruce, who identified the defendants as the men who had attacked herself and Byrne as they walked along Botany Road. Her evidence was called into question by allegations that she had been drunk at the time. Chief Justice Sir Francis Forbes summed up in favour of the defence, and a not guilty verdict was returned.
A number of unsuccessful prosecutions in the Supreme Court’s early history lessened confidence in the abilities of Saxe Bannister as Attorney-General. Forbes deplored Bannister ‘indecorous conduct’ in court, and his tendency to megalomania. Bannister’s resignation was accepted on 13 October 1826. Later the same month he instituted a criminal prosecution claiming he had been a victim of libel by Robert Howe, editor of the Sydney Gazette. The trial earned Bannister further press ridicule, especially as the jury returned a not guilty verdict after only five minutes’ retirement. Following this, Bannister challenged Dr Robert Wardell, editor of The Australian, which had described Bannister’s oration in the Howe case in the most mocking terms, to a duel that was fought at Piermont.
Initially, trials at the Supreme Court continued to be adjudicated by a military jury. On 25 July 1828, Royal assent was granted to the Australian Courts Act. The 1828 Act also abolished the use of the grand jury, which for the previous four years had been used to determine which cases should proceed to trial. However, Section 10 granted the Legislative Council the right to determine its own future policy regarding civilian jury trials.
In the decade between 1829 and 1839, the New South Wales Governor and Council enacted a number of statutes and amendments. The 1829 Juries Act allowed for the optional use of civilian juries in civil cases, although most trials at the time continued to be heard before a judge sitting with assessors. Governor Sir Ralph Darling was strongly opposed to emancipists as jurors for criminal cases, however.
Following Darling’s departure in October 1831, the 1832 Jury Trials Act directed that a civilian jury could be empanelled in criminal cases where the accused proved the victim, or anyone with an interest in the prosecution, was a member of the executive, the military or the navy. Further, emancipated convicts could now sit as jurors in civil cases without requiring a full pardon to do so.
An 1833 amendment further expanded the rights of emancipists in criminal trials. From this point, the accused could choose a jury trial constituted by either civilians or the military. Furthermore, emancipists could now sit as jurors in criminal cases, despite the vocal opposition of those like Justice Sir William Westbrooke Burton, who lamented the quality of available jurors. In correspondence published in The Colonist in 1836, Burton related in detail instances of trials where the jurymen were later found to be associates of the accused, or of one or two ‘low’ characters holding out for an acquittal until the other members of the jury were forced to capitulate. The emancipists achieved their ultimate goal with the passing of the 1839 Jury Trials Act that authorised full rights to emancipists as jurors and abolished military juries in the Supreme Court and Quarter Sessions Courts.
The Supreme Court initially sat in the Georgian School on Elizabeth Street, as the completion of the courthouse across the street continued to drag. It was not until 1827 that the Supreme Court finally moved into these new premises. Criticisms of the buildings arrangements followed almost immediately, leading to a series of alterations and plans for a new courthouse throughout the nineteenth century. Throughout the 1850s and 1860s in particular, the business of the Supreme Court was conducted against a cacophony of noise from tradesmen implementing repairs and additions. In 1896 a new Banco Court on the St James Road frontage was opened. In 1977 a new Law Courts Building was opened at the corner of King and Macquarie Streets, a site formerly occupied by the Crown Law Offices.
The first puisne judge was added to the Supreme Court in 1825. The appointment of colonial-born, locally trained judges to the Supreme Court was facilitated by the 1861 Supreme Court Verdicts Act. The first Supreme Court judge trained in New South Wales was Sir James Martin, who was appointed Chief Justice in 1873. The first Australian-born Chief Justice of New South Wales, however, was Sir William Cullen, who was appointed in 1910. Since 1930, three generations of the Street family have served New South Wales as Chief Justice.
Jurisdiction over divorce cases was granted to the Supreme Court in 1873, and full Admiralty jurisdiction was added in 1911. In 1972, the New South Wales Supreme Court was one of the last jurisdictions in the world to fuse the administration of Equity and Common Law, a process that began in the United Kingdom with the passage of the Judicature Acts between 1873 and 1875. The Supreme Court of New South Wales now operates under the Constitution Act 1902 and the Supreme Court Act 1970.
With the Advancement of Justice Act in 1841 New South Wales recognised a Full Court of the Supreme Court as an Appellate body. Appeals of decisions in both the lower courts and in the Supreme Court itself could be heard by a number of the Supreme Court judges sitting together. The matters on which appeals could be heard were however limited to points related to interpretation of the law. The Full Court as a Court of Criminal Appeal was not empowered to hear matters of fact as well as law until 1912. In 1965 this Full Court system was replaced by the establishment of the New South Wales Court of Appeal, comprising a President and six permanent Judges of Appeal, as a separate division of the Supreme Court.
The 1823 Act directed the establishment of a court system that began to resemble the hierarchy of the English courts, with a three-tiered system of justice with the Supreme Court on top, the Court of Petty Sessions at the bottom, and the Court of Quarter and General Sessions administering the intermediary level of criminal justice.
The Courts of Quarter Sessions had a critical role in the early legal system, particularly between 1824 and 1850. Firstly, its jurisdiction was enlarged beyond the English Quarter Sessions court process in order to try convicts summarily; that is, without a jury. Consequently, it became an important court in the disposal of many criminal offences. However, the court was also critical in its administrative capacity, taking on local government functions that English local government entities would normally oversee, such as the maintenance of public roads.
Initially, however, the Courts of Quarter Sessions became the locus for the Emancipist struggle to attain their right to trial by a civilian jury. The 1823 Act granted the same authority to the colonial Quarter Sessions courts as that of the English Quarter Sessions courts, within limits. Section 19 directed that the establishment of the court and its attendant powers were applicable as far as the circumstances of the Colony required. This naturally raised the issue as to whether juries attached to the criminal process for Quarter Sessions were required under colonial conditions. In England, both a grand and a petit jury were vital components of Quarter Sessions courts. However, the wording of the 1823 Act lacked clarity as to whether the Imperial Parliament had meant to introduce civilian jury trials into the colonial courts.
In New South Wales, the Attorney General Saxe Bannister sought to introduce civilian jury trials, but the conservative magistrates rebelled against his direction to draw up jury lists for Quarter Sessions. The Attorney General brought a case against the magistrates in the New South Wales Supreme Court, and Chief Judge Forbes found that Quarter Sessions civilian juries should be constituted in New South Wales. An unusual disparity in criminal process in the intermediate and higher courts ensued. An indictment to the Supreme Court required the permission of one person, the Attorney General, and a trial before a military jury of seven officers. Yet an indictment at Quarter Sessions relied on the presentment of a grand jury, and a trial by civilian jury of twelve.
Although the jury experiment satisfied the Emancipists and their supporters, it did not align with the original intentions of the Imperial parliament, which subsequently passed another Act in 1828 clarifying the position of juries in the colony. On 25 July 1828, Royal assent was granted to the Australian Courts Act. Although the 1828 Act removed jurors from the Court of Quarter Sessions, section 10 granted the Legislative Council the right to determine its own future policy regarding civilian jury trials.
Under their original constitution, the Quarter and General Sessions were to be presided over by a Chairman, who could be any person considered to possess a competent knowledge of the law. A chairman was selected by all the Justices of the Peace for the district to be administered by the Court electing one of their number to the position. In 1834 this procedure was amended to enable the Governor to appoint a Chairman in the more remote places and for the replacement of a Chairman in the case of illness, death, or removal. In 1858 provision was made for professional judges to be appointed to the Court of Quarter Sessions. The Court of Quarter and General Sessions system continued until criminal jurisdiction was transferred to the District Court under the District Courts Act 1973.
The first Letters Patent of 1787 established the lower court’s summary jurisdiction over criminal matters in the New South Wales colony. Theoretically, all colonists accused of major offences were tried summarily during the first 35 years of settlement, until the establishment of the Supreme Court and Courts of Quarter Sessions. Thus began a process of extending summary jurisdiction, which is strongly characteristic of the contemporary criminal trial process.
The 1787 Letters Patent also established the position of justice of the peace, similar to English justices. Further, the Governor, Lieutenant-Governor and the Judge-Advocate were also ex-officio justices. The justices had the same power and authority to take bail, bind to good behaviour, and suppress and punish riots as they had under the English system. However, justices were more critical to the functioning of the early colonies, enjoying considerable discretionary power. The system of justices expanded with the burgeoning colony; by 1816, there was a local bench of magistrates that met regularly.
The necessity for a single justice to sit on the bench alone reflected colonial conditions, namely the distance between populated areas, the amateur nature of the law at the time, and the lack of suitable candidates to sit as justices. The Imperial parliament’s direction in the 1823 Act that more than one justice should sit on the bench during trials was not feasible in such a system. Judiciously, the same Act also gave colonial administrators and the new Legislative Councils some jurisdiction over the courts. One of the first acts of the New South Wales Legislative Council, therefore, was to grant the Courts of Petty Sessions authority to dispense summary justice with a single justice or police magistrate from 1825.
Further, the colony’s legislation expanded sentencing options for these magistrates. This included whippings and solitary confinement for up to seven days. Magistrates often overstepped that authority, inflicting punishments that were not authorised under summary sentencing, including transportation to Newcastle, and arbitrary sentencing. Honorary justices of the peace had an arguable conflict of interest in their dealings with recalcitrant convicts. The magistrates were usually large landholders or employers who handled their own convict workers. This self-interest led to an often arbitrary use of power that was unchecked until the opening of the Supreme Courts in 1824.
Perhaps this self-interest was uppermost in the minds of the colonial authorities when they introduced a parallel system of paid magistracy much earlier than occurred in England. The first properly paid stipendiary magistrate in New South Wales, D’Arcy Wentworth, was appointed in 1810. Wentworth understood the English criminal process first-hand; he was twice tried and acquitted of highway robbery in 1787 and 1789. At first the position was rewarded by payment in kind, rations or special assignments of convicts but later brought a paid stipend. The police magistrate’s role was a cornerstone of colonial administration that eventually eclipsed that of the honorary justices. By 1920, most of New South Wales was under the jurisdiction of police magistrates, and the justices were relegated to more administrative tasks, such as witnessing documents.
The first Children’s Court in New South Wales was established under the Neglected Children and Juvenile Offenders Act 1905. Sittings of the Children’s Court commenced at Ormond House, Paddington in October 1905. In 1911 the court moved to new premises in Albion Street, Sydney. Legislation raised the minimum age of criminal responsibility from 7 to 8 years of age in 1939. The present Children’s Court is constituted under the Children’s Court Act 1987.
Under the Australian Courts Act 1828, all the laws and statutes in force in England at 28 July 1828 were to be considered law in New South Wales in so far as they were applicable. Prior to this period, there had been an informal reception directing that English law applied unless they were unsuited to circumstances of the colony. Legislation passed after this date in England carried no weight in New South Wales, as it would be up to the new colony to decide what additional laws it felt it was necessary to pass.
Criminal law was established in New South Wales, and remains today, a matter of common law. Under common law, judges determine the bulk of the law relating to criminal justice, as the principles and precedents established in cases must be subsequently followed. However, particular aspects of the law can be modified or clarified by Parliamentary legislation. In 1908, for instance, the Police Offences (Amendment) Act created a number of new offences that were subject to summary jurisdiction, such as prostitutes or pimps soliciting . Two years later the Crimes (Girls’ Protection) Act raised the age of sexual consent from fourteen to sixteen. Fraudulent use of electricity was likewise made a crime in a 1929 statute.
The Crimes Act (1900), with its many subsequent amendments became a reference point for the prosecution of serious crime. Unlike other Australian jurisdictions, however, New South Wales has refrained from the consolidating the criminal law under a Criminal Code.
Criminal law in New South Wales thus remains subject to case law and a wide variety of statutory provisions, with different pieces of legislation passed to respond to changing historical circumstances.
The materials related to the courts of New South Wales being examined by The Prosecution Project in are housed at the State Records office. As the Project is primarily interested in the prosecution of serious crime, we are currently concentrating on analysing and digitising the Supreme Court records. However, we also plan to oversee the addition of Quarter Sessions records into the database. If you would like to assist in the digitisation process by transcribing original court records, visit our Become Involved page.
New South Wales Act 1787
Act for the Administration of Justice in New South Wales and Van Diemen’s Land 1823
Australian Courts Act 1828
Juries Act 1829
Jury Trials Act 1832
Quarter Sessions Act 1834
Jury Trials Act 1839
Advancement of Justice Act 1841
District Courts Act 1858
Supreme Court Verdicts Act 1861
Constitution Act 1902
Neglected Children and Juvenile Offenders Act 1905
Police Offences (Amendment) Act 1908
Crimes (Girls’ Protection) Act 1910
Criminal Appeal Act 1912
Crimes (Further Amendment) Act 1929
Child Welfare Act 1939
Supreme Court and Circuit Courts (Amendment) Act 1965
Supreme Court Act 1970
Supreme Court Amendment Act 1972
District Courts Act 1973
Local Courts Act 1982
Children’s Court Act 1987
(Historical legislation passed in New South Wales from 1824)
(Law reports on court decisions, 1856-1900)
(State reports, 1901-1950)
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